United States District Court, D. Arizona
MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE
to Judge Holland's Order (Doc. 323) this matter was
referred to the undersigned for the limited purpose of
determining whether the Defendant parties 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).
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.
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).
(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).
The Kelsos Present No. Basis on Which The Undersigned Should
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.
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
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.
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.
None of the Other Motion Papers Provide a Basis on Which