Rote v. Comm. on Judicial Conduct

TIMOTHY ROTE, Plaintiff, v. COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY OF THE JUDICIAL CONFERENCEOF THE UNITED STATES, UNITED STATES DEPARTMENT OF JUSTICE,OREGON JUDICIAL DEPARTMENT, OREGON STATE BAR,OREGON STATE BAR PROFESSIONAL LIABILITY FUND, COLORADO JUDICIAL DEPARTMENT,THE HON. ROBERT KUGLER, ARBITRATOR WILLIAM B. CROW, THE HON. PAUL PAPAK,THE HON. ELIZABETH WEISHAUPL, THE HON. ROBERT HERNDON,THE HON. JAMES EGAN, BILLY WILLIAMS(in his official capacity as U.S. Attorney and chief law official in Oregon),CAROL BERNICK (in her official capacity as CEO of the OSBPLF),THE HON. SUSIE NORBY AND JOHN DOES (1-5) Defendants.

Civil Action No.: 19-01299 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

November 6, 2019

Re Document No.: 23

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTION TO DISQUALIFY FOREIGN INTELLIGENCE SURVEILLANCE COURT JUDGES

I. INTRODUCTION

The Plaintiff, Timothy Rote, has brought a complaint against Defendants Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, United States Department of Justice, Oregon Judicial Department, Oregon State Bar, Oregon State Bar Professional Liability Fund, Colorado Judicial Department, the Hon. Robert Kugler, Arbitrator William B. Crow, the Hon. Paul Papak, the Hon. Elizabeth Weishaupl, the Hon. Robert Herndon, the Hon. James Egan, Billy Williams, Carol Bernick, the Hon. Susie L. Norby, and John Does (1-5). The Complaint, which seeks damages as well as declaratory and injunctive relief, alleges: violations of Mr. Rote's First, Fifth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983; a conspiracy to violate his civil rights under 42 U.S.C. § 1985; and, violations of his rights conferred by Article I, sections 8, 10, and 20 of the Oregon Constitution. Mr. Rote moved, pursuant to 28 U.S.C. § 455(a)-(b), to disqualify the undersigned judge. For the reasons explained below, this Court denies Mr. Rote's motion.

II. FACTUAL BACKGROUND

Mr. Rote alleges twenty-eight "acts" committed by various defendants in this action that form the basis for his claims. See Compl., ECF No. 1. These "acts" relate to judicial proceedings before the Hon. Robert E. Jones in the U.S. District Court for the District of Oregon in 2001 regarding a business dispute, id. ¶¶ 20-24; a complaint that Mr. Rote's former employee filed with the Oregon Department of Justice and the Lane County District Attorney in 2003, id. ¶¶ 26-35; judicial proceedings before the Hon. Robert Kugler in a U.S. District Court in New Jersey in 2004 also relating to Mr. Rote's former employee, id. ¶¶ 36-39; criminal contempt of court hearings in New Jersey stemming from the 2014 New Jersey litigation, id. ¶¶ 40-44; arbitration proceedings in Oregon beginning in 2006 involving the same employee who initiated the New Jersey litigation, id. ¶¶ 46-54; ethics complaints filed with the Oregon State Bar Association, id. ¶¶ 55-56; judicial proceedings—considering a motion to vacate the award resulting from the 2006 arbitration—before Federal Magistrate Judge Paul J. Papak in the U.S.District Court for the District of Oregon in 2012, id. ¶¶ 57-60; judicial proceedings—considering a motion to set aside the arbitration judgment—before Judge Papak in 2017, id. ¶¶ 61-62; judicial proceedings before the Hon. Elizabeth Weishaupl in Colorado from 2009 through 2014 regarding a business dispute between Mr. Rote's company and another entity, id. ¶¶ 63-66; judicial proceedings before the Hon. Marco Hernandez in the U.S. District Court in Oregon regarding a dispute between Mr. Rote and a former employee, id. ¶¶ 67-73, 86-87, 91-92, 94-99; judicial proceedings before the Hon. Robert Herndon in Clackamas County, Oregon in 2016 regarding a defamation claim, id. ¶¶ 74-79, 83; an appeal to the Oregon Court of Appeals resulting from the 2016 Clackamas County proceedings, id. ¶¶ 79-80, 84-85; an ethics complaint filed with the Oregon State Bar regarding an alleged violation of certain provisions of the Oregon Rules of Professional Conduct, id. ¶ 82; judicial proceedings in Clackamas County, Oregon in 2018 regarding Mr. Rote's claims of defamation and intentional infliction of emotional distress, id. ¶¶ 88, 93; judicial proceedings before the Hon. Susie L. Norby in Oregon regarding a "Motion to Set Aside the Judgment for legal fees in the Clackamas anti-SLAPP Motion," id. ¶ 90; and unspecified litigation before the Hon. Marco Hernandez in the U.S. District Court in Oregon, id. ¶ 100.

Count I of the Complaint alleges that Defendants violated Mr. Rote's First Amendment rights and seeks relief under 42 U.S.C. § 1983. Id. ¶¶ 101-111. Count II of the Complaint alleges that Defendants violated Mr. Rote's due process rights under the Fifth and Fourteenth Amendments and seeks relief under 42 U.S.C. § 1983. Id. ¶¶ 112-124. Count III of the Complaint, pursuant to 42 U.S.C. § 1985, alleges that Defendants conspired to violate Mr. Rote's civil rights. Id. ¶¶ 125-139. Count IV seeks declaratory and equitable relief pursuant to 42 U.S.C. § 2201. Id. ¶¶ 140-144. Mr. Rote requests an award in excess of $10 million ineconomic damages and $50 million in noneconomic damages, in addition to equitable relief, punitive damages, attorneys' fees, and litigation expenses. Id. at 29-30.

Now before the Court is Mr. Rote's motion to disqualify the undersigned judge, as well as all judges of the United States Foreign Intelligence Surveillance Court ("FISC"), pursuant to 28 U.S.C. § 455(a) and § 455(b)(4). See Pl.'s Mot. to Disqualify Foreign Intelligence Surveillance Court Judges ("Pl.'s Mot. to Disqualify"), ECF No. 23. At the crux of Mr. Rote's motion is that both the undersigned judge and Defendant Judge Kugler serve on the FISC. See id.; Compl. ¶ 11. Mr. Rote alleges that Defendant Judge Kugler solicited other courts to violate Mr. Rote's rights and argues that he will continue to do the same with FISC judges. See Pl.'s Mot. to Disqualify at 2. Mr. Rote further argues that Defendant Judge Kugler has a "professional, and likely personal, relationship" with all the FISC judges, calling the impartiality of each FISC judge into question. Id. Finally, Mr. Rote claims that evidence of bias at this stage of litigation includes this Court's failure to grant Mr. Rote ECF access, Mr. Rote's "Motion for Default against nonresponding parties," and two hearings requested for other pending motions. Id. at 4.

III. ANALYSIS

Mr. Rote requests that the undersigned judge—in addition to all judges of the FISC—recuse from the present case on the ground that this Court's impartiality is in question due to both Defendant Judge Kugler and the undersigned judge serving on the FISC. See Pl.'s Mot to Disqualify. This Court denies Mr. Rote's motion because it finds no basis for recusal.

A. Legal Standard

"[F]ederal judges must maintain the appearance of impartiality" because "[d]eference to the judgments and rulings of courts depends upon public confidence in the integrity andindependence of judges." United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir. 2001) (quoting Code of Conduct Canon 1 cmt.). Accordingly, the United States Constitution, federal statutory law, and codes of judicial conduct each prescribe recusal standards under which a judge may—or, under limited circumstances, must—remove himself from a case to protect the integrity of the proceedings. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876-77 (2009); Microsoft Corp., 253 F.3d at 113-15. The Supreme Court has explained that due process requires recusal "when, objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'" Rippo v. Baker, 137 S.Ct. 905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Thus, "[t]he Court asks not whether a judge harbors an actual, subjective bias, but instead whether . . . the average judge in his position is 'likely' to be neutral, or whether there is an unconstitutional 'potential for bias.'" Williams v. Pennsylvania, 136 S.Ct. 1899, 1905 (2016) (quoting Caperton, 556 U.S. at 881). Under this framework, the Supreme Court has recognized only very few circumstances in which the appearance of bias mandates recusal. See, e.g., Caperton, 556 U.S. at 872 (holding that due process required recusal where a party was a substantial donor to judge's election campaign); Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) (holding that it may violate due process when a judge presides over a criminal contempt case that resulted from the defendant's hostility toward the judge); Tumey v. Ohio, 273 U.S. 510, 523-24 (1927) (holding that a judge may not preside over a case in which he has a "direct, personal, substantial, pecuniary interest"). However, "most questions concerning a judge's qualifications to hear a case are not constitutional ones." Bracy v. Gramley, 520 U.S. 899, 904 (1997).

Recusal of federal district court judges is more often discussed by reference to 28 U.S.C. §§ 144 and 455. See, e.g., SEC v. Loving Spirit Found., Inc., 392 F.3d 486, 492-93 (D.C. Cir.2004). Section 144 provides that "[w]henever 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." 28 U.S.C. § 144. But "the mere fact that a party has filed a [Section] 144 motion, accompanied by the requisite affidavit . . . does not automatically result in the challenged judge's disqualification." Strange v. Islamic Republic of Iran, 46 F. Supp. 3d 78, 81 (D.D.C. 2014) (quoting Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77 (D.D.C. 2010)); see also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005) ("[D]isqualification is not automatic upon submission of affidavit and certificate . . . ."). Rather, "the judge must review [the affidavit] for legal...