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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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-

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