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)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
10
11
12
13
14
15
)
)
)
Plaintiff,
)
)
vs.
)
)
State of Oklahoma ex rel. Oklahoma Bar)
)
Association, et al.,
)
)
Defendants.
)
)
George L. Mothershed,
No. CV 12-00549-PHX-FJM
ORDER
16
We have before us plaintiff's motion for disqualification of the judges of this district
17
(doc. 23), to which defendants did not respond. Plaintiff seeks recusal under 28 U.S.C. §§
18
144 and 455(a).
19
Plaintiff argues that all judges in the District of Arizona must recuse themselves from
20
this action because of the adoption of LRCiv 83.1(a), under which "[a]dmission to and
21
continuing membership in the bar of this Court is limited to attorneys who are active
22
members in good standing of the State Bar of Arizona." Plaintiff apparently challenges rules
23
promulgated by the Oklahoma Supreme Court, and asserts that LRCiv 83.1 is like the
24
Oklahoma rules. Thus, he asserts, we are all biased.
25
Under § 144, whenever a party "makes and files a timely and sufficient affidavit that
26
the judge before whom the matter is pending has a personal bias or prejudice either against
27
him or in favor of any adverse party, such judge shall proceed no further therein." 28 U.S.C.
28
1
§ 144. The affidavit must "state facts which if true fairly support the allegation that bias or
2
prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the
3
merits." United States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 1978). The judge must also
4
look at "(3) the substantiality of the support given by these facts to the allegation of bias."
5
Id. at 740. "[T]he judge against whom an affidavit is filed may pass upon its legal
6
sufficiency . . . . [and] properly deny the affidavit for insufficiency if the facts, taken as true,
7
do not provide fair support for the contention that statutory bias exists." Id. at 739.
8
Section 455(a) provides that any judge "shall disqualify himself in any proceeding in
9
which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The inquiry
10
under both statutes is "whether a reasonable person with knowledge of all the facts would
11
conclude that the judge's impartiality might reasonably be questioned." United States v.
12
Holland, 519 F.3d 909, 913 (9th Cir. 2008) (citation omitted); see also United States v.
13
Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (substantive standard for recusal under these
14
statutes is the same). "The 'reasonable person' is not someone who is 'hypersensitive or
15
unduly suspicious,' but rather is a 'well-informed, thoughtful observer.'" Holland, 519 F.3d
16
at 913 (quoting In re Mason, 916 F.2d 384, 386 (7th Cir. 1990)).
17
No reasonable person would question the impartiality of the judges of this District
18
based on the facts alleged. Recusal is not appropriate under either statute. Plaintiff's motion
19
is frivolous. It defies reason to suggest that every member of this court is biased because of
20
the existence of a local rule governing the practice of law.
21
22
23
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.
24
25
26
27
28
-2-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?