Hanson et al v. Palehua Community Association et al

Filing 47

ORDER DENYING MOTION FOR RECUSAL re 37 . Signed by JUDGE HELEN GILLMOR on 03/20/2013. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RONALD HANSON, KATHY HANSON, )
)
and others similarly
)
situated,
)
Plaintiffs, )
)
)
vs.
)
)
PALEHUA COMMUNITY
ASSOCIATION, a Hawaii Pseudo )
)
Homeowner Association,
GARY WB CHANG, JOHN DOE 1-10, )
)
JANE DOE 1-10, DOE
)
PARTNERSHIPS 1-10, DOE
)
CORPORATIONS 1-10, DOE
)
ENTITIES 1-10, DOE
)
GOVERNMENTAL UNITS 1-10
Defendants. )
_____________________________ )
)

CV. NO. 12-00616 JMS-RLP
ORDER DENYING MOTION FOR
RECUSAL

ORDER DENYING MOTION FOR RECUSAL
On February 25, 2013, Plaintiffs Ronald Hanson and Kathy
Hanson, proceeding pro se, filed a motion to recuse Judge J.
Michael Seabright, the district judge assigned to the case, as
well as any other judges who are members of the American
Judicature Society who might be reassigned the case.

The motion

has been referred to the undersigned judge for disposition.
It is clear from the filings that no hearing is necessary.
The Court, after reviewing the pleadings and filings herein
DENIES the motion for recusal.
without merit.

Plaintiffs’ allegations are

PROCEDURAL HISTORY AND BACKGROUND
On November 19, 2012, the Hansons, proceeding pro se,

filed

a Complaint. The Complaint makes a variety of confusing
allegations against Defendants “Palehua Community Association a
Hawaii Pseudo Homeowner Assn; Its managing agent(s) Associa, inc.
[sic], a Texas corporation (AKA - Certified Hawaii, Certified
Management, inc. [sic], Equity Properties, & Hawaii First, inc
[sic]; Gary WB Chang; Craig Nakamura; The American Judicature
Society: dba Hawaii Chapter of AJS; [and] Finance Factors, LTD &
aliases, Hawaii Corporation(s) and others similarly situated”
(collectively “Defendants”).

(Compl. 1, ECF No. 1)

The Complaint appeared to challenge the legitimacy of the
Palehua Community Association, which is a homeowners association
for a subdivision in the Kapolei area of the Island of Oahu. The
two State Judges, named as Defendants, appear to be connected to
litigation in the state court system involving the Palehua
Community Association and the Plaintiffs.

The American

Judicature Society (“AJS”) was named as a Defendant but it is not
possible to discern their role in the controversy.

The State

Judges and the Hawaii Chapter of the AJS are alleged to have a
conflict of interest “in any legal matter due to their personal
and professional relationships with the AJS and Palehua Community
Association Development directly and indirectly by Defendant
Finance Factors as collaborators for the development of the

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monopoly enterprise in violation of both State and Federal law
with deception to the United States Department of Treasury IRS”
(Compl. at 118., ECF No. 1.)

There is no further specificity.

On November 19, 2012, Plaintiffs filed a Motion for a
Temporary Restraining Order against the two State Court Judges
requesting that they be temporarily enjoined from enforcing the
“void Orders/judgements.” (TRO Motion. 21, ECF No. 3.)
On November 20, 2012, Judge Seabright entered an Order
Denying Plaintiffs’ Motion For Temporary Restraining Order. In
the Order Judge Seabright pointed out that nowhere in the
Complaint does it put forward how an organization such as the
AJS, that exists to facilitate professional relationships, leads
to a plausible cause of action against the AJS.

(Order, ECF No.

16.)
On November 23, 2012, Plaintiffs filed an Amended Complaint.
The Amended Complaint names only two of the previous Defendants
and various Doe Defendants.

The present Defendants are the

Palehua Community Association, again referred to as a “Hawaii
Pseudo Homeowners Association” and State Court Judge Gary W.B.
Chang. (Amended Complaint, ECF No. 18.)
On December 27, 2012, Defendant Judge Gary W.B. Chang filed
a Motion to Dismiss the Amended complaint with Prejudice. (Motion
to Dismiss, ECF No. 20.)
On January 14, 2013, The Palehua Community Association file

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a Motion to Dismiss the “Class Action Complaint for Declaratory
and Injunctive Relief for Damages.” (Motion to Dismiss, ECF No.
24.)
On January 16, 2013, Plaintiffs filed a Motion for Entry of
Default and a Request for Default Judgement.

(Motion and Request

for Default, ECF Nos. 28, 29.)
On January 18, 2013, Judge Seabright entered an Order
Denying (1) Request for Entry of Default And (2) Motion for
Default Judgement.

(Order, ECF No. 34.)

On February 25, 2013, Plaintiffs filed “Plaintiffs Notice of
Motion and Motion to Recuse & Declaration in Support The
Honorable John Michael Seabright and Other Judges or Magistrates
[sic] Judges affiliated with The American Judicature Society &/or
Hawaii Chapter of The AJS.”

The document contains a section

entitled “Declaration for Recusal” which is signed under penalty
of perjury by both Plaintiffs.

(Motion to Recuse, ECF No. 37.)

On February 26, 2013, Judge Seabright filed a Notice To
Chief Judge Susan Mollway Of Plaintiffs Ronald And Kathy Hanson’s
Motion To Recuse. In the Notice Judge Seabright pointed out that
though the Motion invoked 28 U.S.C. § 455, the Declaration
accused the Court of bias and prejudice, and is signed under
penalty of perjury.

He concluded that the matter also falls

under 28 U.S.C. § 144, requiring the matter be brought to the
attention of the Chief Judge to allow for assignment to another

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judge for decision.

(Notice, ECF No. 43.)

In the Notice to Chief Judge Mollway, Judge Seabright
acknowledged that he is a member of the American Judicature
Society but, in an abundance of caution, he has not participated
in any AJS activity since the filing of this lawsuit. He also
corrected the Plaintiffs’ statement that he had been a partner in
the law firm of Carlsmith Ball LLP, clarifying that he had been
an associate with the firm in 1984 and 1985.
On March 7, 2013, the Motion for Recusal was referred to the
undersigned, District Judge Helen Gillmor, for decision.
(Referral, ECF No. 46.)

The undersigned is not a member of the

American Judicature Society.

STANDARD OF REVIEW
28 U.S.C. § 144 provides for recusal of a judge where a
personal bias or prejudice exists against a party or in favor of
an adverse party. Section 144 “requires that the bias or
prejudice of a judge be twofold: (1) personal, i.e. directed
against the party and (2) extrajudicial.” United States v.
Carignan, 600 F.2d 762, 763 (9th Cir. 1979).

Section 144

requires an affiant state the facts and reasons for the belief
that the prejudice exists.

“The facts averred must be

sufficiently definite and particular to convince a reasonable
person that the bias exists; simple conclusions, opinions, or
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rumors are insufficient.” United States v. Sykes, 7 F.3d 1331,
2339 (7th Cir. 1993).
28 U.S.C. § 455 requires recusal where a judge’s
impartiality might reasonably be questioned or where he has
personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the
proceeding. 28 U.S.C. § 455(a) & (b)(1).

Recusal is also

required where the judge knows he has a fiduciary interest in the
subject matter in controversy or in a party to the proceedings,
or any other interest that could substantially affect the outcome
of the proceedings. 28 U.S.C. § 455(b)(4).

A motion for recusal

is committed to the sound discretion of the district Court.
United States v. Bell, 79 F.Supp.2d 1169, 1171 (E.D. Cal. 1999).
The moving party bears a “substantial burden” to show that the
judge is not impartial. Id.
ANALYSIS
Plaintiffs filed a Motion for Recusal alleging Judge
Seabright, and any other Hawaii District Court judges who are
members of the American Judicature Society, are disqualified by
reason of their membership in the organization. Plaintiffs named
the AJS as a Defendant in the original Complaint.

Subsequent to

the denial of Plaintiffs’ Motion for Temporary Restraining Order,
the Plaintiffs filed an Amended Complaint which does not name the
AJS.

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The Amended Complaint, however, does mention the AJS in
Paragraph 11: ”These aforementioned acts would not have been
possible, had it not been for the conspiring actions of the
members of the Hawaii Chapter of AJS whose membership includes
business merchants, officers of the court and directors &
officers of companies (Finance Factors and others), and members
of the State and Federal Government.”

There is no more

specificity as to what the members of the AJS are alleged to have
done other than passing references in the 39 page Amended
Complaint that a particular
officer of AJS.

attorney or judge is a member or

The Amended Complaint alleges Defendants and

others have committed various illegal and tortuous acts including
racketeering, extortion, illegal debt collection, money
laundering, and civil rights violations. (Amended Complaint, ECF
No. 18.)

ALLEGATIONS OF RECUSAL MOTION
Plaintiffs’ Motion mixes allegations that concern the
substance of the case before the District Court in among the
allegations as to why Judge Seabright, and any other judge who is
a member of the AJS, should be recused.

In order to decide if

there is the existence of bias it is not necessary that the Court
attempt to decipher the extraneous allegations.

The rambling

general nature of the allegations fail to provide a connection to

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the charges of bias.
The allegations that concern recusal are as follows:
(1.) Plaintiffs state Judge Seabright was a former partner at
Carlsmith Ball LLP whose partners and associates are members,
directors, and officers of AJS who are “Working hand-in-hand with
Finance Factors officers and Board member investors and attorney
representatives thereby having a conflict of interest and
fiduciary duty to his coworker of the Hawaii Chapter of AJS and
his law partners.” (Motion ¶ 6, ECF No. 44)
(Judge Seabright was never a partner, but was an associate of
the Carlsmith law firm, 18 years ago in 1984 and 1985.)
(2.) Plaintiffs state as fact that Judge Seabright is a
member of the Hawaii AJS and close friend of Defendant State Judge
Gary W. B. Chang. (Motion ¶ 9. Id.)
(3.) According to Plaintiffs, Judge Seabright “knowing the
facts of the TRO to be truthful with first-hand knowledge of the
facts from his work with the Hawaii AJS and Finance Factors et al
DENIED the TRO out of anger and spite.”

(Motion ¶ 11. Id.)

(4.) Plaintiffs state Judge Seabright’s Order Denying Entry
of Default “interferes and engages in Administrative clerical
duties and denies the request for entry of default and motion for
default. Judge Seabright rambles on in his order claiming an
answer was filed (regardless of being untimely) and that Default
was a 2part [sic] process.”

(Motion ¶ 24. Id.)

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The nature of Plaintiffs’ four allegations fall into two
categories.

In (1.) and (2.) the Plaintiffs allege impropriety in

the conduct of The American Judicature Society. There are sweeping
allegations of some unarticulated conspiratorial connection to the
State litigation concerning the Palehua Community Association.
Judge Seabright is alleged to be biased because he is connected to
the Defendant Judge Chang by membership in the AJS and the
allegation that he is a close friend.
When a party files a motion for disqualification and
supporting affidavit under 28 U.S.C. 144, all factual allegations
contained in the affidavit must be accepted as true.

This is true

even if the presiding judge knows the allegations to be false or
contrary to what is in the record or can be proven false by other
means.

Recusal, however, must be based on facts contained in the

affidavit and not on movant’s conjecture, speculation, or
conclusory statements or opinions. United States v. Vespe, 868
F.2d 1328, (3d Cir. 1989).
Movant’s allegations about the AJS, the relationship of its
members, Judge Seabright, and friendship with Defendant State
Judge Chang, are all without any factual support.
The bare allegations of a far reaching conspiracy growing out
of mere membership in a voluntary bar association such as the
American Judicature Society is not sufficient to create the
appearance of bias. The Advisory Opinions of the Code of Conduct

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for the United States Judges support such membership as being in
the best interest of the legal system. In agreeing with the
appropriateness of membership, the Opinion states: “A judge is in
unique position to contribute to the improvement of the law...”
(Quoting Advisory Opinion No. 34 on Canon 4.)
The facts alleged by Plaintiffs, when accepted as true and
stripped of opinion, conjecture, and innuendo do not give “fair
support to the charge of a bent of mind that may prevent or impede
impartiality of judgement [on the part of the presiding judge].
Cooney v. Booth,Jr.,MD. 262 F.Supp.2d 494, 502 (2003) as quoted
from Berger v. United States, 255 U.S. 22, 33-34 (1921).
Plaintiffs’ allegations (3.) and (4.) are in fact complaints
about judicial rulings made by Judge Seabright in the case in
which Plaintiffs have filed the Motion for Recusal.

Plaintiffs’

objection (3.) is to the denial of a Temporary Restraining Order
against enforcement of the rulings of State Court Judges in
proceedings in State Court.
Objection (4.) complains that Judge Seabright did not allow
entry of default against the Defendants who had filed Motions to
Dismiss rather than Answers to the Amended Complaint.
The United States Supreme Court has made clear judicial
rulings alone almost never constitute a valid basis for a bias or
a partiality motion. See United States v. Grinnell Corp., 384 U.S.
563, 583 (1966).

In reaffirming this doctrine in Liteky v. United

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States 510 U.S. 540 at 554-56 (1994) the Supreme Court stated that
a judge’s judicial rulings:
In and of themselves . . . They cannot possibly
show reliance upon an extrajudicial source; and can
only in the rarest circumstances evidence the
degree of favoritism or antagonism required . . .
when no extrajudicial source is involved.
Almost
invariably, they are proper grounds for appeal, not
for recusal.
The Plaintiffs have failed to show that a reasonable
person, knowing all of the circumstances, would have doubts about
the impartiality of Judge Seabright in this case.

CONCLUSION
Plaintiffs’ Motion to Recuse Judge Seabright is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 20, 2013.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

_________________________________________________________________
RONALD HANSON, KATHY HANSON, and others similarly situation v.
PALEHUA COMMUNITY ASSOCIATION, a Hawaii Pseudo Homeowner
Association; GARY WB CHANG, JOHN DOE 1-10, JANE DOE 1-10, DOE
PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, DOE
GOVERNMENTAL UNITS 1-10, Civ. No. 12-cv-00616 JMS-RLP, ORDER
DENYING MOTION FOR RECUSAL

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