In re Damerau

525 B.R. 799

In re: David F. Damerau, Debtor.

Case No. 12–33800

United States Bankruptcy Court,

S.D. Florida,

Fort Lauderdale Division.

Signed February 18, 2015

Steven H. Friedman, Esq., West Palm Beach, FL, Robert F. Reynolds, Fort Lauderdale, FL, Christian A. Petersen, Hackleman, Olive & Judd, P.A., Fort Lauderdale, FL, for Debtor.

ORDER ON MOTION TO RECUSE

John K. Olson, Judge, United States Bankruptcy Court

This case is before the Court without a hearing on the Debtor's pro se Motion (the “Recusal Motion”) [ECF 380] and Affidavit [ECF 381] in Support to Recuse Presiding Judge. The Recusal Motion seeks an order of recusal of this judge pursuant to 28 U.S.C. § 455(a) and (b), 28 U.S.C. § 144, and Federal Rule of Bankruptcy Procedure 5004(a).

Disqualification under 28 U.S.C. § 144

The Debtor seeks disqualification under 28 U.S.C. § 144, which provides that

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.

By its express terms, § 144 applies only to proceedings “in a district court” and is inapplicable to proceedings before a bankruptcy judge.¹Dubnoff v. Goldstein, 385 F.2d 717, 720 (2d Cir.1967); Ginger v. Cohn, 255 F.2d 99 (6th Cir.1958); Seidel v. Durkin (In re Goodwin), 194 B.R. 214, 221 (9th Cir. BAP 1996); In reSyntax–Brillian Corp., 400 B.R. 21 (Bankr.D.Del.2009). Federal Rule of Bankruptcy Procedure 5004(a) expressly provides that the recusal of bankruptcy judges is governed by 28 U.S.C. § 455, and by negative implication, not by § 144. This Court has previously addressed this question and concluded that § 144 does not apply to bankruptcy judges. In re Hussey, 391 B.R. 911, 918 (Bankr.S.D.Fla.2008). ²

Accordingly, to the extent that the Recusal Motion seeks recusal under 28 U.S.C. § 144, it is DENIED.

Disqualification under 28 U.S.C. § 455(b)

Disqualification under § 455(b)(1) requires a judge to disqualify himself or herself where he or she “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” The Debtor makes no allegation that this Court has “personal knowledge of disputed evidentiary facts concerning the proceeding,” and the “personal knowledge” basis for recusal requires no further analysis.

In Liteky v. United States, 510 U.S. 540, 554–55, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), the Supreme Court held that “[b]ias against a litigant must ... arise from an extrajudicial source” for disqualification under § 455(b)(1), Hook v. McDade, 89 F.3d 350, 355 (7th Cir.1996). Adverse orders and other judicial rulings in the same case are insufficient by themselves to establish bias for disqualification under § 455(b)(1). Opinions formed in the course of the judicial proceedings are “nearly exempt from causing recusal,” and can only do so if they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Andrade v. Chojnacki, 338 F.3d 448, 462 (5th Cir.2003). As held by the Fifth Circuit, even a trial judge's insults and expressions of distastefor a party were not enough to meet this high standard because “expressions of impatience, dissatisfaction, and even anger” will not establish the bias or prejudice required by § 455(b)(1). Id. ( citingLiteky, 510 U.S. at 555–56, 114 S.Ct. 1147).

Disqualification under § 455(b)(1) requires that a litigant present evidence of a “negative bias or prejudice [which] must be grounded in some personal animus or malice that the judge harbors against him.” United States v. Balistrieri, 779 F.2d 1191, 1201 (7th Cir.1985). The standard for determining if such bias exists is “whether a reasonable person would be convinced the judge was biased.” Hook, 89 F.3d at 355. This standard for finding actual bias is objective, and that “it is with reference to the ‘well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical and suspicious person’ that the objective standard is currently established.” Andrade, 338 F.3d at 458.

This Court is satisfied that a reasonable, well-informed, thoughtful and objective person could not conclude from a careful review of the entire record in this case that this judge has some personal animus or malice toward the Debtor, let alone that such bias has been established “by compelling evidence,” Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir.2000).

Accordingly, to the extent that the Recusal Motion seeks recusal under 28 U.S.C. § 455(b)(1), it is DENIED.

Disqualification under 28 U.S.C. § 455(a)

Section 455(a) requires disqualification for the appearance of partiality ( i.e., when a judge's “impartiality might reasonably be questioned”) as compared to § 455(b)(1), which requires disqualification for actual partiality ( i.e., when a judge “has a personal bias or prejudice toward a party”). Whether the judge is, in fact, impartial is determinative of disqualification under § 455(b)(1), but it is not dispositive for determining disqualification under § 455(a). The justification for making perceived partiality a grounds for disqualification is at least two-fold. First, regardless of whether judges are partial in fact, public perceptions of partiality can undermine confidence in the courts. Second, disqualifying judges for outward manifestations of what could reasonably be construed as bias obviates making subjective judgment calls about what is actually going on in a judge's heart and mind.

Congress made clear in its 1974 amendments to § 455(a) that judges should apply an objective standard in determining whether to disqualify, that is, whether a judge's impartiality might be questioned from the perspective of “an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988). In denying a motion for his disqualification from Cheney v. United States District Court for the District of Columbia, Justice Scalia noted that the recusal inquiry must be “made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” 541 U.S. 913, 923, 124 S.Ct. 1391, 158 L.Ed.2d 225 (2004) (mem.) (Scalia, J.) (citing Microsoft Corp. v. United States, 530 U.S. 1301, 1302, 121 S.Ct. 25, 147 L.Ed.2d 1048 (2000) (Rehnquist, C.J., respecting recusal) (emphasis added by Justice Scalia) (citing Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). The Second Circuit has characterized the reasonable person as an “objective, disinterested observer” who is privy to full knowledge of the surrounding circumstances.United States v. Bayless, 201 F.3d 116, 126 (2nd Cir.2000).

Prior to the 1974 amendments, in United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), the Supreme Court held that “[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source ... other than what the judge learned from his participation in the case. Id. at 583, 86 S.Ct. 1698. The “extrajudicial source” doctrine stems from the common-sense view that ordinarily, the circumstances suggesting or creating the appearance of partiality cannot reasonably be derived from information learned by the judge in the normal course of litigation. It is natural for judges to form attitudes about litigants and issues as the facts of a case unfold, and no reasonable person would question the impartiality of judges who do. As the Supreme Court explained in Liteky, 510 U.S. at 550–51, 114 S.Ct. 1147:

The judge who presides at trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.

Although disqualification for bias as the result of information from an extrajudicial source “is the only common basis” for disqualification, it is “not the exclusive one.” Id. at 551, 114 S.Ct. 1147. The Supreme Court referred to two different scenarios when disqualification appropriately follows from remarks made during judicial proceedings: when the remarks reveal an extrajudicial bias, and when the remarks reveal an excessive bias arising from information acquired during judicial proceedings. As the Court explained, Id. at 555, 114 S.Ct. 1147:

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 as to make fair judgment impossible.

The Court emphasized that the latter form of bias—one that arises from what the judge learns in the courtroom—must be truly excessive to warrant disqualification, Id.:

A favorable or unfavorable predisposition can also deserve to be characterized as “bias” or “prejudice” because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment.

It is accordingly appropriate to examine each of the “incidents of misconduct” alleged by the Debtor in ¶¶ 6 a-h in the Recusal Motion to have occurred in this case.

6(a). “Personal disparaging statements against the debtor's first attorney Steven Friedman.”

Unfortunately, Mr. Friedman handled the Debtor's case in an...