Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, a municipal corporation, Defendant. DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR DISQUALIFICATION AND RECUSAL UNDER 28 U.S.C. §§ 144, 455(a) and 455(b)(1) Defendant, City and County of Denver, Colorado, a Municipal Corporation (hereinafter "Denver"), by and through its attorneys, Christopher M.A. Lujan and Franklin A. Nachman, Assistant City Attorneys, for its response to Plaintiff's Motion for Disqualification or Recusal under 28 U.S.C. §§ 144, 455(a) and 455(b)(1), states as follows: PROCEDURAL AND FACTUAL BACKGROUND This Motion is the third in a trilogy of meritless motions filed by Plaintiff after the Court entered its 27 September 2007 Order granting Defendant a new trial and vacating the jury's verdict on the basis of attorney misconduct. Like his previous two motions, Plaintiff's recusal motion is long on invective and short on legal authority and this Motion too must be denied.

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As a threshold matter, Plaintiff's motion states that he conferred in good faith with Defendant's counsel regarding the Motion. To the contrary, undersigned counsel for Defendant represents to this Court that Plaintiff's counsel did not even leave his traditional brief and curt voicemail message shortly before filing the Motion, which has been his modus operandi for how he attempts to comply with the Local Rule. This Motion should be denied on that basis alone. Alternatively, there are numerous substantive grounds for denying this Motion. Plaintiff's counsel's affidavit does not comply with the requirements for a sworn affidavit or the alternative under 28 U.S.C. §1746. Furthermore, it is an affidavit by Plaintiff's

counsel, and not by Plaintiff. Even if the exhibit purporting to be an affidavit can be considered, it fails to satisfy the requirements for the Sections for a recusal Motion, as it is rife with conclusions, rumors, beliefs, and opinions. It is short on facts and long on guess and speculation. Plaintiff's Motion also fails because it does not demonstrate that the Court had the required personal, as opposed to a professional, bias against the Plaintiff, and that the source of this alleged bias was extrajudicial. The United States Supreme Court has held that the duty to recuse will not be presumed and it cannot be based solely on the judge's rulings. A court's rulings may be grounds for appeal, but not for recusal.

Opinions gleaned from the facts of the case are generally not enough to support recusal even if the Court makes critical or disparaging remarks about parties and counsel, and even if the Court expresses anger and frustration during the course of the proceedings. Any alleged bias must go beyond what is normal and acceptable and must extend to the

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point of being extreme. The ultimate issue is whether the judge is biased against the Plaintiff and not whether he is annoyed with Plaintiff's counsel. Plaintiff's arguments for recusal, most of which are being repackaged and offered up for the third time, are insufficient. The Court's conduct in this case should be

praised, not attacked. Recusal motions are not to be used as tools for judge shopping. That is the purpose of the present motion and it must be denied. LEGAL ARGUMENT I. Plaintiff's Counsel Failed to Comply with Local Rule 7.1(A)

Despite representations in Plaintiff's Motion, his counsel made no effort whatsoever to confer with Defendant before bringing this motion. Plaintiff therefore failed to comply with Local Civil Rule 7.1(A), and this motion must be denied. The purpose of Local Civil Rule 7.1(A) is to require the parties to confer and to attempt to resolve a dispute before incurring the expense of filing a motion and before requiring the court to address the disputed issue. Hoelzel v. First Select Corp., 214 F.R.D. 634, 635 (D. Colo. 2003). Failure to comport with Local Rule 7.1(A) is sufficient grounds to warrant denial of a party's motion. Echostar Commc'ns Corp. v. News Corp. Ltd., 180 F.R.D. 391, 394 (D. Colo. 1998). Such denial is warranted in this case. Not only did plaintiff's counsel fail to confer with Denver's counsel as required by Rule 7.1(A), but he also misrepresented to the Court his efforts in that regard. II. A. Plaintiff's Motion Fails to Meet the Legal Standards for Recusal The Affidavit Attached to Plaintiff's Motion is Legally Insufficient

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The provisions of 28 U.S.C. §144, require a party make and file a timely and sufficient affidavit affirming 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. The affidavit is required to state the facts and reasons for the belief that bias or prejudice exists, and shall be accompanied by a certificate of counsel records stating that it is made in good faith. The term "party" used in §144 does not include counsel. Gilbert v. City of Little Rock, Ark., 722 F. 2d 1390 (8th Cir. 1983); Davis v. Bd. of Sch. Comm'rs. of Mobile County, 517 F. 2d 1044 (5th Cir. 1975). Plaintiff's Motion under 28 U.S.C. § 144 lacks an affidavit from a party and a certificate of counsel stating that it is made in good faith. The motion may be denied simply on this basis. Alternatively, even if the Court could consider the affidavit of an attorney in lieu of that of a party, this affidavit is insufficient. It is neither sworn, nor does it recite that it is made "under penalty of perjury," which is an alternative to an affidavit under 28 U.S.C. §1746. Henderson v. Inter-Chem. Coal Co., 41 F. 3d 567, 570, n. 1 (10th Cir. 1994). For purposes of §§ 144 and 455 any affidavit or evidence must state with required particularity the identifying facts of time, place, persons, occasion and circumstances. Hinman v. Rogers, 831 F. 2d 937, 939 (10th Cir. 1987). To be

considered legally sufficient, the party must allege personal bias or prejudice caused by an extrajudicial source other than what the judge has learned or experienced from his participation in the case. Lucero v. Mesa County Sheriff's Office, 2006 U.S. Dist. LEXIS 89780 (D. Colo. 2006) at *3, quoting Sine v. Local No. 992, Intern. Broth. of Teamsters, 882 F. 2d 913, 914 (4th Cir. 1989). An affidavit is insufficient if it merely states

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conclusions, rumors, beliefs and opinion. It is vital to the integrity of the system of justice that a judge not recuse himself on unsupported, irrational or highly tenuous speculation. Hinman, 831 F. 2d at 939. This Court should not recuse himself on the basis of Plaintiff's insufficient and irrational affidavit. B. Plaintiff Has Not Met the Requirements for §144 Recusal

In Grass v. Phelps, 849 F. 2d 1261 (10th Cir. 1988), the Tenth Circuit Court of Appeals affirmed the district court's refusal to recuse himself under both §§144 and 455. While noting that the Court was required to accept the truth of the facts alleged in the affidavit under §144, the affidavit is to be construed strictly against the party seeking recusal. See, Weatherhead v. The Globe Inter'l., Inc., 832 F. 2d 1226, 1227 (10th Cir. 1987). Applying the standards for affidavits, the Grass Court held that the affidavit was grossly insufficient, as it lacked particularity, and was filled with conclusions, rumors and innuendo. 849 F. 2d at 1267. See also, In re Cooper, 821 F. 2d 833, 838-839 (1st Cir. 1987) (Petition for writ of mandamus denied; allegations of prejudice against parties' counsel insufficient); McCann v. Commc'ns Design Corp., 775 F. Supp. 1506, 1527 (D. Conn. 1991) (Court must look to extrajudicial conduct, not to what the judge has learned from or done in the proceedings before him). Plaintiff's affidavit fails these tests. The majority of the affidavit merely recites opinion and argument, not facts. It engages in blatant guess and speculation, as

counsel has recited that he "cannot help wondering" about a response he filed and that he "wondered" whether his alleged "literary flourish" triggered the Court's resentment. See Brennan affidavit, Exhibit, ¶5. Furthermore, the affidavit fails to recite any

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extrajudicial personal bias, but only often his repeated dissatisfaction with the Court's rulings. At the same time, the document reflects rulings in Plaintiff's favor, for which he finds no fault. These rulings contradict the argument that the Court was so extreme as to require recusal. As discussed in next section, Plaintiff's brief cites few cases to support recusal, and ignores the numerous cases in this and other circuits holding that recusal motions were correctly denied. C. Plaintiff Has Not Met the Requirements for Disqualification Pursuant to §455

Plaintiff further seeks to disqualify this Court arguing under 28 U.S.C. §455(a) that his impartiality might reasonably be questioned, or alternatively, under §455(b) (1) that he has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. As with his attack brought under §144, Plaintiff's effort is doomed to failure. The optimal starting point for discussing disqualification motions under § 455 is the most recent United States Supreme Court opinion to consider this statute, Liteky v. United States, 510 U. S. 540, 114 S. Ct. 1147, 27 L. Ed. 2d 474 (1994). Before trial, defendants moved to disqualify the district judge pursuant to § 455(a). That motion relied on events that had occurred during and immediately after an earlier trial involving one of the defendants before the same judge. Defendants argued disqualification was required because the judge had displayed "impatience, disregard for the defense and animosity" toward the defendant, the co-defendants, and their beliefs. The evidence included limiting defense counsel's cross-examination; questioning witnesses; periodically cautioning defense counsel to 6

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confine his questions to issues material to the trial; similarly admonishing witnesses to keep answers responsive to actual questions that were directly related to material issues; and giving defendant what was alleged to have been considered an excessive sentence. The ground alleged to be the most serious was the judge's interruption of the closing argument of one of the co-defendants, instructing him to cease the introduction of new facts and to restrict himself to discussion of evidence already presented. The Court of Appeals affirmed the convictions and agreed that disqualification was not appropriate, as matters arising during the course of judicial proceedings were not a proper basis for disqualification. On appeal, the United States Supreme Court affirmed the denial of defendant's disqualification motion. It began by reviewing the history of §144, and the adoption of and revisions to §455. Discussing the "extrajudicial source" doctrine, the Court

observed that knowledge and resulting attitudes that a judge properly acquired in an earlier proceeding was not "extrajudicial." 510 U.S. at 545. While this doctrine was often quoted as justifying refusal to consider trial rulings as the basis for recusal, the Supreme Court observed that trial rulings are a judicial "expression" rather than a judicial "source" and may be based on extrajudicial knowledge or motives. Id. Finally, it noted that even in cases in which the source of bias or prejudice arose from the proceedings themselves, the doctrine had a "pervasive bias" exception and might not always be applied. Justice Scalia's majority opinion defined the contours of the "extrajudicial source" limitation in §455(a) and how it should be applied in disqualification cases. He wrote

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that the "extrajudicial source" doctrine is one application of the pejorativeness requirement of the terms "bias" and "prejudice" as they are used in §§ 144 and 455(b)(1), with specific reference to the work of judges. The Supreme Court went on to state: The judge who presides at a trial may come upon completion of the evidence, be exceedingly ill-disposed toward the defendant, who has been shown to a thoroughly reprehensible person. But the judge is not there by recusable for bias or prejudice, since his knowledge and the opinions were produced improperly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to the completion of the judge's task. As Judge Jerome Frank pithily put it: "impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those courthouse dramas called trials, he could never render decisions." In re: J. P. Linahan, 138 F. 2d 650, 654 (2nd Cir. 1943). 510 U.S. at 550-551. The Court further stated that the "extrajudicial source" doctrine is not the only basis for establishing disqualifying bias or prejudice. It stated "a favorable or unfavorable predisposition can also deserve to be characterized as "bias" or "prejudice" because, even though it springs from the facts deduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment." Id. The

pejorativeness of connotations of the terms "bias" and "prejudice" demand that they be applied only to judicial predispositions that go beyond what is normal and acceptable by a judge. Having established that "extrajudicial source" doctrine applies to § 455(a), the Court described the contours of the doctrine as follows: 1) Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. See United States v.

Grinnell Corp., 384 U.S. 563, 583, 16 L.Ed. 2d 778, 86 S. Ct. 1698 (1966). Most 8

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invariably, they are proper grounds for appeal not recusal. 2) Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or trial proceedings, do not constitute a basis for bias or partiality motions unless they display a deep seated favoritism or antagonism that would make fair judgment impossible. The decision emphasizes, "Thus, judicial remarks during the

course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism that is to make fair judgment impossible." Id. at 555. Furthermore, it noted "actions not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that within the bounds of what imperfect men and women even after having been confirmed as federal judges sometimes display." Id. at 555-556. Therefore "[a] judge's ordinary efforts at courtroom administration ­ even a stern and short-tempered judge's ordinary efforts at courtroom administration ­ remain immune." Id. After establishing the boundaries for this theory, the Supreme Court affirmed the lower courts' judgments, finding the case was "not difficult". It found by objective

standards that all of the events occurred in the course of judicial proceedings and the trial judge neither relied on knowledge acquired outside the proceedings nor displayed deep seated and unequivocal antagonism that rendered fair judgment impossible. This Court should reach the same result as the Liteky Court. To the limited extent that Plaintiff's affidavit alleges facts, they were all acquired during the course of

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these proceedings. The events of this case also reflect that this Court demonstrated the patience of a saint in face of Pecksniffian attacks from counsel, who despite needing to know better, admits his own disingenuousness and in defending his gratuitous insults to several witnesses as mere "quips". Several Tenth Circuit cases, including some cited in Plaintiff's Motion, have held that disqualification was not warranted. In United States v. Mendoza, 468 F. 3d 1256 (10th Cir. 2006), defendant moved to disqualify the district court judge because of apparent bias against defense counsel. Defendant complained that the court had

referred the attorney to a bar disciplinary board, published his order denying the motion to disqualify him in the case, and had a prior professional relationship with the prosecutor. The trial court denied the motion and the Court of Appeals for the Tenth Circuit affirmed. Stating that it reviewed the district court's decision for abuse of discretion, the Mendoza Court held a judge should not be disqualified for faithfully performing the duties of his office. Contrary to Plaintiff's argument on page 10 of his motion, Courtney v. Satellite Glass Corp., 811 F. Supp. 1466 (D. Kan. 1992), involved the standard for granting a new trial, and not for disqualification motions or sanctions for attorney misconduct. Unfavorable judicial rulings do not in themselves call into question the partiality of a judge. See, Estate of Bishop v. Equinox Int'l Corp., 256 F. 3d 1050, 1058 (10th Cir. 2002). The Court also stated that referrals for disciplinary review do not call into question the impartiality of a judge and "generally, clashes between court and counsel are an insufficient basis for qualification." United States v. Cook. 400 F. 2d

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877, 878 (4th Cir. 1968). The analysis and result by the Tenth Circuit Court of Appeals applies equally well to this case. In United States v. Nickl, 427 F. 3d 1286 (10th Cir. 2005), the appeals court also affirmed denial of a disqualification motion. Stating that the standard is purely objective, it rejected arguments that adverse rulings, such as refusal to grant defense counsel's request for continuance and for additional jury instructions, were grounds for disqualification. Likewise, the court's reprimand and ejection of a witness from the

courtroom, its interruption of witness testimony, and question of witnesses constituted attempts at courtroom administration. The Tenth Circuit held none of the events

evidenced such a high degree of favoritism or antagonism as to make fair judgment impossible. 427 F. 3d at 1298 ­ 1299 (citing Liteky, 510 U.S. at 555). Finally, the Tenth Circuit stated that comments made by the trial court during voir dire, while arguably insensitive or inappropriate, did not require disqualification. It concluded that neither the court's rulings, statements, and actions during trial prejudiced defendant nor constituted "injudicious damnation" of him. The result in the Nickl case is closely analogous to this case. Plaintiff's disagreements with this Court's ruling in the conduct of this trial are insufficient to justify disqualification. Nor do any comments by this Court rise to the level of a high degree of favoritism or antagonism making fair judgment impossible. In Bryce v. Episcopal Church in the Diocese of Colo, 289 F. 3d 648 (10th Cir. 2002), plaintiffs sought disqualification under §§ 455(a) and (b) (1) and the Tenth Circuit Court of Appeals affirmed the district court's denial of the motion. It emphasized "a judge also has `strong duty to sit when there is no legitimate reason to recuse as he

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does to recuse when the law and facts require.'" See, Nichols v. Alley, 71 F. 3d 347, 351 (10th Cir. 1995). The disqualification statute should not be construed so broadly as to become presumptive or to require disqualification based on unsubstantiated suggestions of personal bias or prejudice. The Bryce Court also noted the case of United States v. Cooley, 1 F. 3d 985, 993 (10th Cir. 1993) for the proposition that §455 is not intended to give litigants a veto power over sitting judges or a vehicle for obtaining a judge of their choice. Plaintiff cited the Cooley case in his motion, and at least in this respect the Defendant agrees with that citation of authority. In that case, while the Tenth Circuit concluded that the trial judge should have disqualified himself, it did so based on statements he made on a nationally televised network news program about the case. In analyzing the judge's televised comments about the case and holding that he should have recused himself, the Tenth Circuit stated, "Together, these messages unmistakenly conveyed an uncommon interest and degree of personal involvement in the subject matter. It was an unusual thing for the judge to do, and it unavoidably created the appearance that the judge had become an active participant in bringing law and order to bear on the protesters, rather than remaining as an attached adjudicator." 1 F. 3d at 995. To Defendant's knowledge, no such event has occurred in this litigation. The Tenth Circuit in Cooley listed several other factors arising from §§ 144, 455(a), and 455(b)(1) motions which would not ordinarily satisfy the requirements for disqualification under § 455(a): 1) Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters; 2) the mere fact that a judge has previously expressed an opinion on a point of law; 3) prior rulings in a proceeding or in

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another proceeding, solely because they were adverse; [citations omitted] 4) mere familiarity with the defendant(s), or the type of charge, or kind of defense presented; 5) baseless personal attacks on or suits against the judge by a party; 6) reporters' personal opinions or characterizations appearing in the media, media notoriety, and reports in the media purporting to be factual, such as quotes submitted to the judge or others, but which are in fact false or materially inaccurate or misleading; and 7) threats or other attempts to intimidate the judge. [citations omitted] 1 F. 3d at 993-994. The events in this case pale in comparison to the seven potential factors found not to satisfy the requirements for disqualification and Plaintiff's motion must therefore be denied. Plaintiff cites few cases to support his motion, and fails to analyze those he did cite. The Court in United States v. DeClerck, No. 07-3136, 2007 U.S. App. LEXIS 24943 (10th Cir. Oct. 24, 2007) denied the disqualification motion, characterizing it as relying on unsupported, irrational or highly tenuous speculation. In United States v. Pearson, 203 F. 3d 1243 (10th Cir. 2000), the Tenth Circuit Court of Appeals held that statements made during the sentencing proceeding did not require a disqualification of the trial judge. It was also noted that a trial judge will be required to make decisions concerning credibility and those decisions are not grounds for disqualification. The

same tribunal affirmed the denial of a disqualification motion in United States v. Gigax, 605 F. 2d 507 (10th Cir. 1979). Two cases found at the end of Plaintiff's string cite on page 2 of his Motion upheld disqualification, but involved far more extreme conduct by the trial judges. In Bell v. Chandler, 569 F.2d 556 (10th Cir. 1978), the trial court had demonstrated bias

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and prejudice against the U. S. Attorney, in part based on previous cases in which he had disbarred and held in contempt the U.S. Attorney and five of his assistants, have only to be reversed on procedural and substantive grounds. In United States v. Ritter, 540 F. 2d 459 (10th Cir. 1976), the appeals court held disqualification was appropriate because of the trial court's deferential attitude toward defendant's counsel, who was a member of a state bar council which was also considering sanctions against the judge. The judge had previously been disqualified in other cases. Plaintiff appropriately cited Charron v. United States, 200 F. 3d 785 (Fed. Cir. 1999), which held that other than conclusory statements, Plaintiffs made no attempt to demonstrate personal bias and prejudice against them, but only against their counsel. In denying the motion, the court cited Judge Henry Friendly's opinion in Rosen v. Sugarman, 357 F. 2d 794, 798 (2nd Cir. 1966): A judge is not to be faulted as biased or prejudiced because he has considered the effective discharge of his responsibility over the proceedings before him...as demonstrated that consistent rejection of an attorney's contentions are strong measures to prevent what he does as an inexcusable waste of time. Moreover, an occasional display of irritation, usually regretted as seems may, does not suffice to show personal bias or prejudice, whether the irritation was justified or not. 200 F. 3d at 789. See also, Gomez v. St. Jude Med. Diag. Div., Inc., 442 F. 3d 919, 938-939 (5th Cir. 2006) ("In evaluating disqualification under §455, the question is whether the court is biased against a party, not whether the court is annoyed with the party's counsel"). These statements fully apply to what the court said and did in this case and the actions of this Court do not rise to the level of disqualification or recusal under the federal statutes.

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CONCLUSION Like the Bellman in Lewis Carrolls' " Hunting of the Snark," who said "What I tell you three times is true," Plaintiff's recusal Motion recycles the same arguments raised in his § 1292(b) certification Motion and Motion for Reconsideration. They have no more authority in this Motion than in the two previous motions. Shedding more heat than light on the recusal issue, Plaintiff has utterly failed to meet his burden, and his Motion must be denied. Dated: 23 November 2007 Respectfully submitted,

s/ Christopher M.A. Lujan_________ Christopher M.A. Lujan s/ Franklin A. Nachman___________ Franklin A. Nachman Assistant City Attorneys Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 E-mail: [email protected] Attorneys for Defendant City and County of Denver

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CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of November, 2007 , I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR DISQUALIFICATION AND RECUSAL UNDER 28 U.S.C. §§ 144, 455(a) and 455(b)(1) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: e-mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety Deputy Chief Jim Sestrich Department of Safety Denver Fire Department s/ Marilyn Montoya______________ Denver City Attorney's Office

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