Winslow v. Lehr

• Decision Date: 08 August 1986
• Docket Number: Civ. A. No. 86-K-1202.
• Citation: 641 F. Supp. 1237
• Parties: Rainsford J. WINSLOW, Plaintiff, v. Ronald L. LEHR, Edythe S. Miller, Andra Schmidt, 1 through 200 are designated as John/Jane Does, yet unknown, Defendants.
• Court: U.S. District Court — District of Colorado

641 F. Supp. 1237

Rainsford J. WINSLOW, Plaintiff, v. Ronald L. LEHR, Edythe S. Miller, Andra Schmidt, 1 through 200 are designated as John/Jane Does, yet unknown, Defendants.

Civ. A. No. 86-K-1202.

United States District Court, D. Colorado.

August 8, 1986.

Rainsford J. Winslow, Fort Morgan, Colo., pro se.

Valerie J. McNevin-Peterson, Asst. Atty. Gen., Denver, Colo., for defendants.

FINDINGS AND ORDER REGARDING MOTION TO RECUSE

KANE, District Judge.

The plaintiff in this action has moved to disqualify me on the grounds that he fears me. He attempts to adopt by reference "everything he has put into the record in Case No. 85-HB-1979" ... a case over which I have absolutely no control. His affidavit in the instant case states no facts. It again attempts to adopt by reference "everything that is specifically mentioned in the MOTION FOR SUMMARY JUDGMENT and AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT."

The affidavit is set forth in eleven separately numbered paragraphs. Paragraphs one through eight inclusive relate solely to decisions made by me in some of the numerous cases filed by plaintiff in this court. Paragraph nine contains a summary conclusion that, because of the rulings made, the plaintiff believes that I "detest" him and am partial to an opposing attorney and his clients. Paragraphs ten and eleven contain assertions of the plaintiff filing his case and affidavit in good faith and that the plaintiff "does not want to be subjected to his authority again."

In other pleadings the plaintiff has expressed perplexity at my refusal to recuse or grant a motion to disqualify. Though I sincerely doubt that a detailed explication of the law on recusal and disqualification will satisfy the plaintiff, I will nevertheless make one so as to reflect the grounds for my decision.

First, the filing of an affidavit of prejudice does not operate automatically to disqualify a judge. The judge must examine the affidavit to determine whether it is sufficient as a matter of law. The test is whether the facts alleged are legally sufficient to require disqualification. The only test is sufficiency.

Second, while there has been a great deal of discussion and adoption of changes in the recommended rules for judges to apply in instances such as this, the law as enunciated by the Supreme Court of the United States remains clear and unequivocal that a judge is under an affirmative ethical duty to sit when there is no legally sufficient reason to recuse. It is not my station to question the wisdom of a rule stated by our highest court, nor would I in this instance because the devastating effects of a contrary rule should be obvious even to the most myopic of readers.

In 1924, the American Bar Association adopted canons of judicial ethics. Since these canons established only general standards for proper judicial conduct, the ABA replaced them in 1972 with the Code of Judicial Conduct. The code was more detailed and specific with respect to setting standards of conduct. Note, Judicial Disqualification in the Federal Courts: Maintaining an Appearance of Justice under 28 U.S.C. § 455, 1978 Law Forum 863, 867. "The most notable feature of the new Code was its incorporation of an objective "appearance of justice" standard for judicial disqualification, under which a judge was to recuse himself whenever his `impartiality might reasonably be questioned.'" Id. The ABA Code of Judicial Conduct provides in pertinent part:

Canon 3 C: Disqualification:

(1) A judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(c) 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;

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding; ...

This new standard was contrary to the provisions for disqualification in the federal statute which was still in effect when the new code was adopted. The federal statute, at that time, provided for disqualification only where a judge had "a substantial interest, had been of counsel, had been a material witness, or was connected to a party or attorney in a case so as to render it improper `in his opinion' to sit." 1978 Law Forum 863, 867-868.

In 1974, Congress amended section 455 to be consistent with the provisions of Canon 3 C of the Code. Today section 455 provides in pertinent part:

Disqualification of justice, judge, or magistrate:

(a). Any justice, judge, or magistrate 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;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(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 (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge's knowledge likely to be a material witness in the proceeding ...

By revising the statute, Congress intended to set forth an "objective standard" for disqualification. H.R.Rep. No. 93-1453, 93d Cong., 2d Sess. 5 (1974), U.S.Code Cong. & Admin.News 1974, pp. 6351, 6355. The objective standard was intended to modify the "duty to sit" so that judges could recuse when the question whether to hear the case was close. Congress intended to harmonize the statute and the Code of Judicial Conduct in order to make the "duty to sit" a weaker consideration with respect to disqualification under § 455 in close cases.

Similarly under § 144, if the statutory requirements are met, i.e.: the motion is timely, and the affidavit is sufficient, a judge must recuse or disqualify himself and has no duty to sit. 28 U.S.C. § 144; Antonello v. Wunsch, 500 F.2d 1260, 1262 (10th Cir.1974); United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976). In essence, the most favorable policy consideration is to provide a fair tribunal which is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). The system is designed to prevent even the probability of unfairness, although such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. Id. The law favors recusal in situations where fair adjudication is reasonably questioned upon factual bases.

Section 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 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.

Thus, if a party makes a motion supported by an affidavit, and the affidavit is sufficient, regardless of the truth of the statements contained therein, the judge must disqualify himself. Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921); Bell v. Chandler, 569 F.2d 556 (10th Cir.1978); Antonello v. Wunsch, 500 F.2d 1260, 1262 (10th Cir. 1974). Motions made under § 144 are resolved by the method and procedure set forth in the statute. United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976).

In an affidavit of bias, the affiant has the burden of showing three things in order for the affidavit to be deemed sufficient to require disqualification; 1) the facts must be...