Newman v. Hamburg, Township of et al

Filing 13

ORDER denying 10 Motion for Recusal. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL NEWMAN,
Plaintiff,

Case No. 12-10258

v.
SENIOR UNITED STATES DISTRICT JUDGE
ARTHUR J. TARNOW

TOWNSHIP OF HAMBURG, ET AL.,
Defendants.

MAGISTRATE JUDGE R. STEVEN WHALEN
/

ORDER DENYING DEFENDANTS’ MOTION FOR RECUSAL [10]
Before the Court is Defendants’ Motion for Recusal [10], filed on June 11, 2012. Plaintiff filed
a Response [12] on June 22, 2012. For the reasons stated below, Defendants’ Motion for Recusal is
DENIED.
28 U.S.C. §§ 144 and 455 govern the disqualification of a judge. A judge shall disqualify
himself or herself in “any proceeding in which his impartiality might reasonable be questioned . . . [or]
[w]here he has a personal bias or prejudice concerning a party . . . .” 28 U.S.C. § 455. This standard
“is an objective one; hence, the judge need not recuse himself based on the ‘subjective view of a party’
no matter how strongly that view is held.” United States v. Sammons, 918 F.2d 592, 599 (6th Cir.
1990) (quoting Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988)).
Repeatedly ruling against a party does not constitute sufficient grounds to grant a motion for
recusal. See City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir. 1980). Similarly, rulings
based on “participation in the proceedings or prior contact with related cases,” and even “erroneous
or atypical rulings” cannot satisfy the requisite showing of prejudice. Sammons, 918 F.2d at 599.
Rather, disqualification pursuant to 28 U.S.C. § 455(a) “must be predicated . . . upon
extrajudicial conduct rather than on judicial conduct.” City of Cleveland, 619 F.2d at 578. Such
extrajudicial conduct means “personal bias,” defined as:

prejudice that emanates from some source other than participation in the proceedings
or prior contact with related cases. Personal bias arises out of the judge’s background
and associations. The critical test is whether the alleged bias ‘stem[s] from an
extrajudicial source and result[s] in an opinion on the merits on some basis other than
what the judge learned from his participation in the case.
Sammons, 918 F.3d at 599 (quoting Wheeler v. Southland Corp., 875 F.2d 1246, 1251-52 (6th Cir.
1989) (insertions in original)).
“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion .
. . they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest
circumstances evidence the degree of favoritism or antagonism required” for recusal. See Liteky v.
United States, 510 U.S. 540, 555 (1994) (citing United States v. Grinnell Corp., 384 U.S. 563, 583
(1966)). Further, “opinions formed by the judge on the basis of facts introduced or events occurring
in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias
or partiality motion unless they display a deep-seated favoritism or antagonism . . . .” Id.
Defendants first argument related to the court’s granting of Plaintiff’s petition for habeas
corpus in Newman v. Metrish, 492 F. Supp. 2d 721 (E.D. Mich. 2007). This grant was upheld by the
United States Court of Appeals for the Sixth Circuit. Newman v. Metrish, 543 F.3d 793 (6th Cir.
2008). Defendants state that “in his underlying opinions related to the granting of habeas corpus,
Judge Tarnow has clearly already developed bias and opinions adverse to the Defendants . . . .”
Defendants also state that the court has demonstrated through “several written opinions, his strong
opinions on the factual evidence . . . .”
Defendants do not identify any statements or other actions by the court that demonstrate “deepseated favoritism or antagonism” toward Defendants. Rather, Defendants simply list the past rulings
of the court with which Defendants disagree. Disagreement with a judge’s decision or ruling is not
a basis for disqualification. Liteky, 510 U.S. at 555-56. As noted above, “judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion . . . opinions formed by the judge on the
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basis of facts introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion” absent deep-seated favoritism
or antagonism. Liteky, 510 U.S. at 555. Defendants have failed to demonstrate either factor
Defendants next question the court’s impartiality based on past employment. Defendants state
that the court “has, on prior occasions, consistent with his prior employment with the State Appellate
Defender’s Office, granted habeas corpus to other criminal defendants.” Defendants implication that
the court’s past employment at the State Appellate Defender’s Office, which ended in 1972, renders
the court unable to impartially decide habeas corpus petitions or related civil cases is unseemly.
Judges come to the bench from diverse backgrounds. Some have worked as prosecutors, some as
defense attorneys. Past employment does not, absent evidence of deep-seated antagonism or
favoritism, constitute a basis for recusal.
Accordingly, Defendant’s Motion for Recusal is DENIED.
SO ORDERED.
s/Arthur J. Tarnow
ARTHUR J. TARNOW
SENIOR UNITED STATES DISTRICT JUDGE
Dated: July 3, 2012
_______________________________________________________________________________
CERTIFICATE OF SERVICE
I hereby certify on July 3, 2012 that I electronically filed the foregoing paper with the Clerk
of the Court sending notification of such filing to all counsel registered electronically. I hereby certify
that a copy of this paper was mailed to the following non-registered ECF participants on July 3, 2012:
None.
s/Michael E. Lang
Deputy Clerk to
District Judge Arthur J. Tarnow
[phone]

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