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United States v. Bigley

United States District Court, D. Arizona

October 23, 2019

United States of America, Plaintiff,
v.
Michael A Bigley, et al., Defendants.

          ORDER

          G. MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE

         Pursuant to Judge Holland's Order (Doc. 323) this matter was referred to the undersigned for the limited purpose of determining whether the Defendant parties[1] have stated a basis in various motion papers for Judge Holland to either recuse himself, or to be disqualified pursuant to 28 U.S.C. § 455(a). In his referral order Judge Holland cites to four docket entries, three filed by the Bigley Defendants, and a fourth filed by the Kelso Defendants, that should be considered to determine whether the filings provide possible grounds for Judge Holland's disqualification under 28 U.S.C. § 455(a). (Docs. 318-20, 322).

         Also pending before this Court is the more recently filed motion of the Kelso Defendants for the Disqualification of Chief Judge Murray Snow and Demand for Trial of Fact by Jury (Doc. 324). It, obviously, must be considered prior to the undersigned determining whether there is a basis for Judge Holland's recusal. For the reasons that follow, the Kelsos' motion for disqualification of the undersigned is denied, and the Court determines that there is no reason among the various assertions and positions taken by the Defendants that would merit the disqualification of Judge Holland or suggest that he should otherwise recuse. This case, therefore, is referred back to Judge Holland.

         DISCUSSION

         I. The Law

         The Kelso Defendants move for the disqualification of both the undersigned and Judge Holland on the authority of 28 U.S.C. § 455(a). That statute specifies that “[a]ny . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” An objective standard applies to disqualification under § 455(a) which contemplates whether “a reasonable person with knowledge of all the facts would conclude the judge's impartiality might reasonably be questioned.” Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993).

         Subsection (b), although not explicitly relied upon by the Kelsos enumerates specific situations that require a judge to disqualify himself, regardless of whether the conflict of interest creates an appearance of impropriety. The Defendants do not allege that any basis enumerated in subsection (b) applies here. However, without citing or relying on § 455(b)(1), they do seemingly assert the personal bias of the various judges at issue here. 28 U.S.C. § 455(b)(1) requires disqualification when the judge “has a personal bias or prejudice concerning a party.” Recusal for actual bias pursuant to subsection (b)(1) is required only if the moving party can prove by “compelling evidence” that a reasonable person would be convinced the judge was biased in a way that may prevent a fair decision on the merits. United States v. Balistrieri, 779 F.2d 1191, 1201 (7th Cir. 1985); see also Liteky v. United States, 510 U.S. 540, 553-56 (1994) (defining bias as animus or malice of a kind that a fair-minded person could not entirely set aside when judging certain persons or causes). The party seeking recusal carries a “substantial burden” of overcoming the presumption that a district court is free from bias. United States v. Denton, 434 F.3d 1104, 1111 (8thCir. 2006). Generally, in considering whether recusal is appropriate under § 455, “the judge is free to make credibility determinations, assign to the evidence what he believes to be its proper weight, and to contradict the evidence with facts drawn from his own personal knowledge.” Balistrieri, 779 F.2d at 1202. Although a court must recuse when the provisions of § 455 are implicated, it also has an obligation to hear all cases assigned to it when there is no legitimate reason to recuse. Clemens v. U.S. Dist. Ct. for Cent. Dist. of Cal., 428 F.3d 1175, 1179 (9thCir. 2005); (quoting Nichols v. Alley, 71 F.3d 347, 351 (10thCir. 1995); see also United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008).

         II. Analysis

         A. The Kelsos Present No. Basis on Which The Undersigned Should Disqualify Himself.

         Because the Kelsos move for this Court to disqualify itself from the consideration of whether Judge Holland should recuse or be disqualified, the Court will take up that matter first. Movants bear the burden of overcoming the presumption that the Court is impartial. See Denton, 434 F.3d at 1111. The only involvement this Court has in this case is to determine whether there is a basis on which Judge Holland should recuse or otherwise be disqualified. The Kelsos' first argument for disqualification of the undersigned is apparently based upon their reading of Judge Holland's referral order to this Court. The Kelsos apparently read the order as stating that this Court had already determined, without explanation, that there was no appearance of impropriety in Judge Holland continuing to preside over this case. The Kelsos thus state that this Court “has demonstrated abuse of discretion on the record with respect to providing an impartial and ‘independent evaluation' as to whether or not senior judge Holland should be disqualified from the case.” (Doc. 324 at 1.) This argument is premature.

         This Court had yet to make such a determination, and only first does so in this order. In this order it sets forth its reasoning and case authority for concluding that there is no basis on which “a reasonable person with knowledge of all the facts would conclude Judge Holland's impartiality might reasonably be questioned.” It, however, had not issued any previous orders in this case, and, to the extent the Defendants understood otherwise, it was a misunderstanding. Further, to the extent the Kelsos attempt to preemptively assert that this Court's ruling demonstrates bias, judicial rulings are not a valid basis for a bias or partiality motion “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555. The undersigned does not do so here. Thus, the Kelsos provide no basis for reasonably questioning the impartiality of this Court. If the Kelsos believe this Court's ruling that Judge Holland is not required to disqualify is in error, they may seek to preserve the right to appeal the question to the Ninth Circuit, to the extent they may properly do so. But, for the reasons stated in Liteky, this Court's ruling on the question does not provide a basis for disqualification.

         Second, the Kelsos apparently assert, based upon a general order of this Court that the undersigned has a personal bias against unrepresented litigants. That general order, executed in 2018 by the undersigned as the Chief Judge of this Court requires self-represented litigants to apply to the judge to whom their case is assigned prior to being issued subpoenas. (General Order 18-19.) Thus, in this district, self-represented litigants need to attach a copy of the proposed subpoena setting forth the name and address of the witness to be subpoenaed, and further state with particularity the reasons for seeking the testimony and documents, prior to obtaining the subpoena. This order-one of general applicability throughout the district-does not prevent self-represented litigants from obtaining appropriate subpoenas, but it does prevent self-represented litigants who may be unfamiliar with the limits set on obtaining discovery from third parties, from abusing the subpoena power of the Court by having subpoenas issued in blank to the self-represented litigant. To the extent that the Kelsos believe this district-wide order may be in violation of the federal rules of civil procedure or other statutory authority, they, of course, maintain the right to seek to have the rule overturned assuming that they appropriately raise and pursue the matter.

         But, that does not mean that a local rule pertaining to self-represented litigants provides a basis to disqualify the undersigned, or all other members of this Court, as reflecting bias, or an appearance of bias as to the merits of the various causes asserted by self-represented litigants. The general order applies to all judges of this court and to all self-represented litigants, and there is nothing in the order that would establish that the undersigned has a personal bias against the Kelsos by the compelling evidence standard required. Balistrieri, 779 F.2d at 1201; see also Liteky, 510 U.S. at 553-56 (defining bias as animus or malice of a kind that a fair-minded person could not entirely set aside when judging certain persons or causes). The party seeking recusal carries a “substantial burden” of overcoming the presumption that a district court is free from bias. Denton, 434 F.3d at 1111. Nor would the order provide a basis for “a reasonable person with knowledge of all the facts” to “conclude the judge's impartiality might reasonably be questioned.” After a review of the Kelsos' arguments and documents, this Court determines that they present no basis for its recusal or disqualification.

         B. None of the Other Motion Papers Provide a Basis on Which Judge ...


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