Smith et al v. USA

Filing 90

ORDER denying 77 Motion to Disqualify, by Judge Raymond P. Moore on 6/2/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-01156-RM-KLM
DAVID L. SMITH, and
M. JULIA HOOK,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
______________________________________________________________________________
ORDER DENYING MOTION TO DISQUALIFY (ECF NO. 77)
______________________________________________________________________________
THIS MATTER is before the Court on Plaintiffs’ Motion to Disqualify United States
Magistrate Judge Karen (sic) L. Mix1 (“Motion”) (ECF No. 77). Upon consideration of the
Plaintiffs’ Motion, Defendant’s limited Response, the Court’s file, and the applicable rules and
law, the Plaintiffs’ Motion is denied for the reasons stated herein.
Pursuant to 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” The purpose of § 455(a) is “to promote public confidence in the integrity of the
judicial process” and to avoid even the appearance of impropriety. Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 860 (1988). Similarly, under § 455(b)(1), a judge or magistrate
judge should also be disqualified if he has a personal bias or prejudice concerning a party.
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Both Plaintiffs and Defendant appear to refer to the Magistrate Judge as “Karen L. Mix.”
Judge Mix is properly referred to as Magistrate Judge Kristin L. Mix.

“[A] judge has a continuing duty to recuse before, during, or, in some circumstances, after a
proceeding, if the judge concludes that sufficient factual grounds exist to cause an objective
observer reasonably to question the judge's impartiality.” United States v. Cooley, 1 F.3d 985,
992 (10th Cir. 1993) (emphasis added). The issue is “whether a reasonable person, knowing all
of the relevant facts, would harbor doubts about the judge’s impartiality.” Nichols v. Alley, 71
F.3d 347, 351 (10th Cir. 1995) (quotation omitted); Cooley, 1 F.3d at 993. The standard is
purely objective. See Nichols, 71 F.3d at 350; Cooley, 1 F.3d at 993; Scott v. Rubio, No.
12-2063, 516 Fed.Appx. 718, 722, 2013 WL 410865, at *3 (10th Cir. Feb. 4, 2013). “The statute
is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a
judge of their choice.” Cooley, 1 F.3d at 993; Nichols, 71 F.3d at 351. The decision to recuse is
committed to the sound discretion of the district court. Cooley, 1 F.3d at 994; Phillips v. The
Pepsi Bottling Group, No. 08-1003, 373 Fed.Appx. 896, 898, 2010 WL 1619259, at *2 (10th
Cir. April 22, 2010) (discussing § 455(b)(1)).
Plaintiffs request the disqualification of the Magistrate Judge, arguing she issued orders
favorable to Defendant commencing in the fall of 2013. Plaintiffs assert the Magistrate Judge’s
rulings in this case evidence a lack of fairness and impartiality. The Court has reviewed each
one of the Magistrate Judge’s rulings, along with the associated papers. Contrary to Plaintiffs’
position, the Court’s review of the matters of which Plaintiffs complain shows no support for
Plaintiffs’ assertions of unfairness or impartiality by the Magistrate Judge.
Plaintiffs’ arguments are, for the most part, based on the Magistrate Judge’s adverse
rulings in a variety of matters going back several months in time, which Plaintiffs repeatedly
contend are arbitrary or an abuse of discretion. Those rulings, while adverse, are simply that and

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nothing more. “Adverse rulings cannot in themselves form the appropriate grounds for
disqualification.” Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (quotation omitted);
Rubio, 516 Fed.Appx. at 723. Motions for recusal must also be filed promptly. Green, 108 F.3d
at 1305; Rubio, 516 Fed.Appx. at 723. As such, these rulings do support a finding of lack of
impartiality, or personal bias or prejudice against Plaintiffs.
Additionally, Plaintiffs allege that Magistrate Judge Mix should be disqualified because
of pending proceedings before the Court’s Committee on Conduct. Apparently, Plaintiff Smith
has an application for readmission to the bar of this Court pending before the Committee.
Because of this, Chief Judge Marcia Krieger and District Judge Christine Arguello successively
recused themselves from this matter, noting that their responsibilities on the Committee on
Conduct might reasonably call their partiality into question in this matter. On the heels of these
recusals, the Motion was filed. Plaintiffs allege that “Smith’s conduct in this case with respect to
United States Magistrate Judge Karen L. Mix is part of the alleged attorney misconduct being or
to be considered by...[the Committee]...with respect to United States Magistrate Judge Karen L.
Mix is part of the alleged attorney misconduct being or to be considered by...[the Committee]...
with respect to Smith’s application for readmission to the bar of this Court....”
The meaning of this allegation is less than clear given that a reinstatement application
rather than a disciplinary proceeding based on alleged misconduct is what appears to be before
the Committee. Nonetheless, certain matters are clear. Unlike Judges Krieger and Arguello,
Judge Mix is not a member of the Committee or any Disciplinary Panel before which
proceedings concerning Plaintiff Smith are pending. There is no allegation that Judge Mix filed
any complaint or submitted anything else to the Committee, that she is even aware of the

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pending proceedings other than through the allegations of the Motion, or that she has any role,
involvement or even interest in the outcome of such proceedings. And in terms of the
significance of the allegation that “Smith’s conduct in this case” may be considered by the
Committee, assuming arguendo that this is the case, such a bald allegation does not call Judge
Mix’s objectivity or the appearance thereof into question. Indeed, were grounds for
disqualification to exist solely on this basis, Plaintiffs would be dealt a veto card by which they
could disqualify any judge in this matter at their choosing simply by asserting that Plaintiff
Smith’s conduct before that judicial officer might be looked at or considered by the Committee.
This Court declines the invitation to deal such card to Plaintiffs.
Judge Mix’s circumstances simply are not comparable to those of Judges Krieger and
Arguello. And nothing in Judge Mix’s circumstances justifies disqualification.
ORDERED that Plaintiffs’ Motion to Disqualify United States Magistrate Judge Karen L.
Mix (ECF No. 77) is DENIED.
DATED this 2nd day of June, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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