Krug v. Maricopa County Superior Court et al

Filing 25

ORDER AND OPINION, the Motion to Reopen Case 13 is denied; Defendants shall respond to the merits of Krug's Motion for Reconsideration 12 within 14 days from the filing of this order; no reply may be filed unless requested by the court. Signed by Judge John W Sedwick on 2/6/15.(REW)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 Karyl Krug, 12 13 14 Plaintiff, vs. Maricopa County Superior Court, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) 2:14-cv-01320 JWS ORDER AND OPINION [Re: Motion at Docket 13 and Order for Response to Motion at Docket 12] 17 I. MOTION PRESENTED 18 At docket 13 plaintiff Karyl Krug (“Krug”) proceeding in propria persona filed a 19 motion titled “Motion to Re-Open the Case for Reassignment to a Neutral Judge.” 20 Examination of the motion shows that it is in substance a motion requesting the 21 assigned judge to recuse himself. 22 In addition to deciding the motion at docket 13, this order will require defendants 23 to respond to Krug’s motion for reconsideration at docket 12. 24 II. BACKGROUND 25 The background giving rise to this lawsuit is set out in detail in the court’s earlier 26 order at docket 7 and need not be repeated here. Backg round information important to 27 the pending motion includes the following: One of the several defendants named by 28 Krug is Douglas Rayes (“Rayes”). Rayes was a judge on the Maricopa County 1 Superior Court at the time relevant to Krug’s complaint. Subsequently, Rayes was 2 confirmed as a judge of the United States District Court for the District of Arizona 3 (“Arizona Court”). This case was originally assigned to Hon. David C. Campbell, a 4 district judge who has served for many years on the Arizona Court. When Judge 5 Campbell recused, this case was reassigned to the currently assigned judge, who is a 6 senior district judge on the United States District Court for the District of Alaska as a 7 visiting judge for the Arizona Court. Thereafter, the defendants moved to dismiss 8 Krug’s claims. After the motion was briefed, the assigned judge granted the motion, 9 and judgment was entered that Krug take nothing. 10 III. STANDARD OF REVIEW 11 There are two statutes which address recusal of United States judges, 28 U.S.C. 12 § 144 and 28 U.S.C. § 455. Section 144 does not apply here because Krug’s motion is 13 not supported by the affidavit required by that statute. 1 Section 455 does apply. 14 A United States judge is under an affirmative duty to recuse “in any proceeding 15 in which his [or her] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). 16 As Krug does here, a litigant may raise the issue of recusal under section 455. 2 The 17 judge, however, “has ‘as strong a duty to sit when there is no legitimate reason to 18 recuse as he does to recuse when the law and facts require.’”3 The standard is whether 19 a “reasonable person with knowledge of all the facts would conclude that the judge’s 20 impartiality might reasonably be questioned.”4 This “reasonable person” means “a ‘well- 21 22 23 24 1 25 2 26 27 28 United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). United States v. Conforte, 624 F.2d 869 (9th Cir. 1980). 3 Clemons v. U.S. Dist. Court for the Dist. of Calif., 428 F.3d 1175, 1179 (9th Cir. 2005) (quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir.1995)). 4 Id. at 1178. -2- 1 informed, thoughtful observer,’ as opposed to a ‘hypersensitive or unduly suspicious 2 person.’”5 3 A judge must also recuse when the judge “has a personal bias or prejudice 4 concerning a party or personal knowledge concerning the proceeding.” 28 U.S.C. 5 § 455(b)(1). A litigant seeking to disqualify a judge must establish that the judge’s bias 6 or prejudice reflects an obvious inability to fairly preside over a proceeding.6 This 7 generally requires that the alleged bias or prejudice arise from an extrajudicial source.7 8 The Supreme Court has recognized that past “judicial rulings alone almost never 9 constitute a valid basis for a bias or partiality motion.”8 10 Recusal motions brought pursuant to 28 U.S.C. § 455 should be decided by the 11 judge whose recusal is sought.9 In deciding whether recusal is required, the judge need 12 not accept as true the allegations advanced by the moving party.10 13 14 IV. DISCUSSION In support of her motion, Krug makes two quite different arguments. One of 15 them is that the order at docket 7 reflects a “bizarre application of FRCP 12(b)(6),”11 16 includes a footnote amounting to a “gratuitous slap at counsel’s pleadings,”12 and 17 permitted entry of judgment prior to expiration of the time for a motion for 18 reconsideration. These complaints are, of course, based on judicial rulings which are 19 20 21 22 5 Id. (quoting In re Mason, 916 F.2d 384, 386 (7th Cir.1990)). 6 See, e.g, Liteky v. United States, 510 U.S. 540, 551-52 (1994). 7 23 Clemons, 428 F.3d at 1178. 8 24 25 Liteky, 510 U.S. at 555. 9 Clemens, 428 F.3d at 1178; In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994). 26 10 27 11 28 12 Clemens, 428 F.3d at 1178. Doc. 13 at 4. Id. -3- 1 almost never an appropriate basis for recusal. Moreover, there is nothing so unusual 2 about the rulings as to constitute some sort of exception to the nearly universal rule. 3 Krug first points to an error in the court’s interpretation of Rule 12(b)(6). Judges 4 sometimes do make mistakes in application of the Federal Rules of Civil Procedure. 5 This sort of error—if error there be in the order at docket 7—is subject to ordinary 6 appellate review. It certainly does not constitute evidence supporting recusal. 7 Krug next claims that footnote 5 contains a “gratuitous slap at counsel’s 8 9 10 11 12 pleadings.” That footnote reads as follows: The Complaint is ambiguous as to whether Krug’s allegation of retaliation via negative references and “blackballing” falls under Claim I, Claim II, or both. The text of Claim I and Claim II omits any reference to this form of retaliation; both refer only to retaliatory termination. Krug generally alleges retaliatory “blackballing” in the “Factual Allegations” section of the Complaint, however. For clarity’s sake, the court will construe Krug’s inartfully pleaded Complaint as alleging retaliatory termination under Claim I and retaliatory blackballing under Claim II. 13 As is obvious from the footnote itself, far from taking a ”slap” at Krug’s lawyer, the court 14 was explaining that it would resolve the ambiguity in the Complaint in favor of Krug. 15 Krug also complains that judgment was entered before the time ran for making a 16 motion for reconsideration. Yet, that is not uncommon, at least in the experience of the 17 assigned judge: Motions for reconsideration are rarely granted, and disappointed 18 litigants are often eager to expose the perceived error in a trial court’s decision to 19 appellate review. Be that as it may, a trial court retains jurisdiction to consider a motion 20 for reconsideration filed after entry of judgment (so long as it is timely under the local 21 rules). Indeed, that will be done in this case. 22 Krug’s arguments about judicial decisions lack merit in the context of recusal, so 23 the court next turns to her arguments to the effect that the assigned judge is biased and 24 should therefore recuse. Condensed to their essence, her arguments are that because 25 the assigned judge owns property in Maricopa County, where he resides for portions of 26 the winter months, which property is within five miles of the residence of defendant 27 Rayes, the assigned judge must be biased. Simply stating the argument exposes its 28 -4- 1 absurdity. In fairness to Krug, what seems to underlie her concern about the fact that 2 the assigned judge has a part time residence in Maricopa County is the fact that Judge 3 Campbell, who is a member of the same bench as newly confirmed Judge Rayes, 4 recused himself. Krug seemingly believes that his recusal must in fairness compel the 5 assigned visiting judge to recuse because he has ties to the State of Arizona. 6 As authority to support her argument, Krug cites Withrow v. Larkin.13 In that case 7 the Supreme Court held that the fact that a medical licensing board had both 8 investigative and adjudicative powers did not deprive a physician who was the subject 9 of an investigation and adjudication of the due process required by the constitution. In 10 the opinion, as noted by Krug, the Court noted that a fair tribunal is required for due 11 process and that in some circumstances, “the probability of actual bias on the part of 12 the judge or decision maker is too high to be constitutionally tolerable.”14 Krug omitted 13 the Court’s subsequent statement describing circumstances which might give rise to 14 constitutional concern which it identified as including “cases in which the adjudicator 15 has a pecuniary interest in the outcome and cases in which he has been the target of 16 personal abuse or criticism from the party before him.”15 17 Here, the assigned judge has no pecuniary interest in the outcome of the lawsuit. 18 Neither has the assigned judge been the target of abuse or criticism by any of the 19 parties. In addition, it should be noted that the assig ned judge does not know Rayes, 20 does not maintain chambers in the Phoenix courthouse where Rayes has chambers, 21 and is a resident of Alaska, not Arizona. Thus, the assigned judge’s circumstances are 22 distinctly different from those of Judge Campbell. Judge Campbell likely does know 23 Rayes, he certainly has chambers in the Phoenix courthouse, he is likely to be Rayes’ 24 colleague for many years to come, and he is a resident of Arizona. This leaves Krug’s 25 26 13 27 14 28 15 421 U.S. 35, 47 (1975). Doc. 13 at 5 (quoting Withrow, 421 U.S. at 47). Withrow, 421 U.S. at 47. -5- 1 assertion that having a part time winter home within five miles of Rayes’ home requires 2 recusal, a proposition that is untenable. 3 V. CONCLUSION AND ORDER FOR RESPONSE 4 For the reasons above, the motion at docket 13 is DENIED. 5 IT IS FURTHER ORDERED that defendants shall respond to the merits of Krug’s 6 motion for reconsideration at docket 12 within 14 days from the filing of this order. No 7 reply may be filed unless requested by the court. 8 DATED this 6th day February 2015. 9 10 11 /s/ JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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