Liu v. UC Berkeley/UC Regents

Filing 24

ORDER by Judge Hamilton denying 21 Motion to Disqualify Judge (pjhlc2, COURT STAFF) (Filed on 2/8/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AMY LIU, 9 10 United States District Court Northern District of California 11 Case No. 15-cv-4958-PJH Plaintiff, 8 v. ORDER DENYING MOTION TO DISQUALIFY JUDGE UC BERKELEY/UC REGENTS, Defendant. 12 13 14 Plaintiff Amy Liu seeks an order disqualifying the undersigned district judge under 15 28 U.S.C. §§ 455(a), 455(b)(2), and 455(b)(3). In her motion, plaintiff states that “the 16 background of Honorable Phyllis J. Hamilton’s career as a public defendant attorney who 17 served public school for so many years before, I don’t feel comfortable in having her be 18 the judge for all further proceedings in this case about a public school.” Dkt. 21, ¶ 5. 19 This case was randomly assigned to the undersigned pursuant to the court's 20 Assignment Plan, as set forth in General Order 44. The general rule in federal court is 21 that a judge should handle the cases assigned to him or her unless a legitimate reason 22 for recusal exists. See United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008). 23 Legitimate reasons for recusal are outlined in two statutes – 28 U.S.C. §§ 455 and 144 – 24 and in § 3(C) of the Code of Conduct for United States Judges. 25 Section 455 provides in relevant part: 26 27 (a) Any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 (b) He shall also disqualify himself in the following circumstances: 1 ... 2 (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; 3 4 5 (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; 6 7 8 9 10 United States District Court Northern District of California 11 12 13 28 U.S.C. § 455. Although plaintiff’s motion does not invoke 28 U.S.C. § 144, that section provides, in relevant part: Whenever 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, but another judge shall be assigned to hear such proceeding. 14 15 The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists . . . . 16 17 28 U.S.C. § 144. If a judge finds a § 144 motion timely and the affidavit legally sufficient, 18 the judge must proceed no further and another judge must be assigned to hear the 19 matter. 28 U.S.C. § 144; U.S. v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). 20 Under both § 144 and § 455, the standard is whether “a reasonable person with 21 knowledge of all the facts would conclude that the judge’s impartiality might reasonably 22 be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). A 23 “reasonable person” is not “hyper-sensitive or unduly suspicious,” but rather a “well- 24 informed, thoughtful observer.” See id. (citing Holland, 519 F.3d at 913 (quotations 25 omitted). 26 While the test for personal bias is the same under both statutes, the procedural 27 requirements of the sections are different. Sibla, 624 F.2d at 867. Section 144 28 “expressly conditions relief upon the filing of a timely and legally sufficient affidavit.” Id. 2 1 (cit tations omitted). If the judge to whom the m e w motion is dir rected dete ermines that the t 2 acc companying affidavit specifically alleges fac stating g s cts grounds for recusal un r nder § 144, 3 “the legal suff ficiency of the affidavit has been established and the m t t d, motion mus be st 4 ref ferred to an nother judge for a dete e ermination o its merits Id. (citat of s.” tion omitted d). 5 An affid davit filed pursuant to § 144 “is n legally s p not sufficient un nless it spec cifically 6 alle eges facts that fairly support the contention that the jud exhibits bias or pr t dge s rejudice 7 directed toward a party that stems from an ext t f trajudicial s source.” Id. at 868 (cit . tation 8 om mitted). 9 It appe ears that the only basis for plaintif motion is the unde e s ff’s ersigned’s p previous em mployment as a public defender. That, stand a ding alone, provides n basis on which to no 11 United States District Court Northern District of California 10 to question the undersigned’s impartia u ality. And t the exten that the c nt court under rstands 12 pla aintiff’s cont tention that the unders t signed “serv public school for s many ye rved so ears 13 bef fore,” the court finds no basis for it, nor does plaintiff explain what was intended by the n r 14 alle egation. 15 Plaintif declarat ff’s tion does not add any facts that w would sugg gest the und dersigned’s 16 impartiality might reason nably be questioned, a it states o as only that “[i]t may be v very hard 17 for Hon. Phyll J. Hamilt to cond r lis ton duct a fair ju udgment on a lot of fur n rther court 18 pro oceedings,” and that “i may not be fair for H ” it b Hon. Phyllis J. Hamilton as well so a random o m 19 re-selection of a judge should be th best choice.” See D 21-1, ¶ 14. o he Dkt. 20 21 Accord dingly, plain ntiff’s motion is DENIE D. The hea n aring set fo February 17, 2016 or V . is VACATED. 22 23 24 25 26 IT IS SO ORDER S RED. Da ated: Febru uary 8, 2016 6 __ __________ __________ __________ _______ PH HYLLIS J. H HAMILTON Un nited States District Ju s udge 27 28 3

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