Mothershed v. Oklahoma, State of et al

Filing 33

ORDER denying 23 Plaintiff's Motion for Disqualification or Recusal of the Judges of this District. Signed by Judge Frederick J Martone on 5/10/12. (LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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State of Oklahoma ex rel. Oklahoma Bar)
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Association, et al.,
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Defendants.
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George L. Mothershed,

No. CV 12-00549-PHX-FJM
ORDER

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We have before us plaintiff's motion for disqualification of the judges of this district
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(doc. 23), to which defendants did not respond. Plaintiff seeks recusal under 28 U.S.C. §§
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144 and 455(a).
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Plaintiff argues that all judges in the District of Arizona must recuse themselves from
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this action because of the adoption of LRCiv 83.1(a), under which "[a]dmission to and
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continuing membership in the bar of this Court is limited to attorneys who are active
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members in good standing of the State Bar of Arizona." Plaintiff apparently challenges rules
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promulgated by the Oklahoma Supreme Court, and asserts that LRCiv 83.1 is like the
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Oklahoma rules. Thus, he asserts, we are all biased.
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Under § 144, whenever a party "makes and files a timely and sufficient affidavit that
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the judge before whom the matter is pending has a personal bias or prejudice either against
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him or in favor of any adverse party, such judge shall proceed no further therein." 28 U.S.C.
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§ 144. The affidavit must "state facts which if true fairly support the allegation that bias or

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prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the

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merits." United States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 1978). The judge must also

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look at "(3) the substantiality of the support given by these facts to the allegation of bias."

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Id. at 740. "[T]he judge against whom an affidavit is filed may pass upon its legal

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sufficiency . . . . [and] properly deny the affidavit for insufficiency if the facts, taken as true,

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do not provide fair support for the contention that statutory bias exists." Id. at 739.

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Section 455(a) provides that any judge "shall disqualify himself in any proceeding in

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which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The inquiry

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under both statutes is "whether a reasonable person with knowledge of all the facts would

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conclude that the judge's impartiality might reasonably be questioned." United States v.

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Holland, 519 F.3d 909, 913 (9th Cir. 2008) (citation omitted); see also United States v.

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Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (substantive standard for recusal under these

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statutes is the same). "The 'reasonable person' is not someone who is 'hypersensitive or

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unduly suspicious,' but rather is a 'well-informed, thoughtful observer.'" Holland, 519 F.3d

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at 913 (quoting In re Mason, 916 F.2d 384, 386 (7th Cir. 1990)).

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No reasonable person would question the impartiality of the judges of this District

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based on the facts alleged. Recusal is not appropriate under either statute. Plaintiff's motion

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is frivolous. It defies reason to suggest that every member of this court is biased because of

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the existence of a local rule governing the practice of law.

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IT IS ORDERED DENYING plaintiff's motion for disqualification of the judges of
this district (doc. 23). We urge plaintiff to seek the advice of counsel.
DATED this 10th day of May, 2012.

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