Akins v. Knight et al

Filing 26

ORDER entered by Judge Nanette Laughrey. Plaintiff Akins' motion to recuse or disqualify, Doc. 15 , is denied. (Barragan-Scott, Alana)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
MATTHEW STEPHEN AKINS,
Plaintiff,
v.
DANIEL K. KNIGHT, et al.,
Defendants.

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No. 2:15-cv-4096-NKL

ORDER
Plaintiff Matthew Stephen Akins has sued the City of Columbia and Boone County,
Missouri, the Boone County Prosecuting Attorney and assistant prosecutors, and Columbia
police officers, for alleged violation of his civil rights in relation to traffic stops, arrests, charges,
and other activities. Akins moves for recusal or disqualification of the undersigned, arguing the
undersigned lacks authority to preside over this case and has personal biases. [Doc. 15.] The
motion is denied.
I.

Discussion
A.

Authority of a senior judge

Akins’s primary argument is that the undersigned “lacks the congressional authority to
hear this case” because she is a judge in senior status. [Doc. 15, p. 4]. The Eighth Circuit has
addressed and rejected this argument, in two cases also involving a challenge to the authority of
the undersigned. See Rodgers v. Knight, 781 F.3d 932, 943 (8th Cir. 2015); and Williams v.
Decker, 767 F.3d 734, 743 (8th Cir. 2014), cert. denied, 135 S. Ct. 1418 (2015). The Court must
therefore reject it.
Akins nevertheless suggests that Rodgers and Williams can be distinguished, by focusing

on the effect of the appointment of a successor judge once a judge takes senior status, a narrower
aspect of the authority issue and one the Eighth Circuit did not explicitly mention in its more
general dispatch of the issue in Rodgers and Williams. The argument is unpersuasive. In
Williams, the Eighth Circuit explained:
Williams and Porter also advance the novel argument that the
district court judge lacked authority to adjudicate this matter due to
her status as a senior district court judge. This contention is
without merit. “Senior judges are fully commissioned Article III
judges, and the Supreme Court has expressly held that upon
assuming senior status, a senior judge ‘does not surrender his
commission, but continues to act under it.’” Bank v. Cooper,
Paroff, Cooper & Cook, 356 Fed. Appx. 509, 511 (2d Cir.2009)
(summary order) (quoting Booth v. United States, 291 U.S. 339,
350–51, 54 S.Ct. 379, 78 L.Ed. 836 (1934)), cert. denied, ––– U.S.
––––, 131 S.Ct. 93, 178 L.Ed.2d 28 (2010); see also Nguyen v.
United States, 539 U.S. 69, 72, 123 S.Ct. 2130, 156 L.Ed.2d 64
(2003) (stating that a senior circuit judge is “of course, [a] lifetenured Article III judge[ ]”); 28 U.S.C. § 371(b)(1) (“Any justice
or judge of the United States appointed to hold office during good
behavior may retain the office but retire from regular active
service....”).
767 F.3d at 743.
The Eighth Circuit included citation to Booth, in which the Supreme Court addressed a
challenge to the authority of a judge, who has retired, to continue to perform official duties:
The first question asks, in effect, whether a United States Judge,
upon retirement, relinquishes or retains his office. The answer is to
be found in the act of Congress authorizing retirement.[ ] That act
provides for resignation and for retirement. In referring to the
former it uses the expression ‘When any judge * * * resigns his
office * * *,’ and provides for continuance of compensation after
resignation. In contrast it declares, ‘But, instead of resigning, any
judge * * * who is qualified to resign under the foregoing
provisions, may retire, upon the salary of which he is then in
receipt, from regular active service on the bench, * * *’ not, be it
noted, from office. The retiring judge may be called upon by the
senior circuit judge to perform judicial duties in his own circuit or
by the Chief Justice to perform them in another circuit, and be
authorized to perform such as he may be willing to undertake. …
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291 U.S. at 349-50. The Supreme Court held that a judge who retires does not relinquish office,
but simply retires from regular, active service:
[I]t is common knowledge that retired judges have, in fact,
discharged a large measure of the duties which would be
incumbent on them, if still in regular active service…. [A retired
judge] does not surrender his commission, but continues to act
under it. He loses his seniority in office, but that fact, in itself,
attests that he remains in office. A retired District Judge need not
be assigned to sit in his own district. [Maxwell v. United States,
3 F.2d 906 (4th Cir. 1925), aff’d 271 U.S. 647.] And if a retired
judge is called upon by the Chief Justice or a Senior Circuit Judge
to sit in another district or circuit, and he responds and serves
there, his status is the same as that of any active judge, so called.
[McDonough v. United States, 1 F.2d 147 (9th Cir. 1924).] It is
impossible that this should be true, and that at the same time the
judge should hold no office under the United States.
Id. at 350-51 (emphasis added).
If, as Akins argues, 28 U.S.C. § 294, Assignment of Retired Justices or Judges to Active
Duty, means a judge who has taken senior status must be designated and assigned by the chief
judge or judicial council of his circuit to perform duties in the circuit in which he was originally
appointed, before such judge may perform any duties, [Doc. 15, p. 7], it is a sea change the
Eighth Circuit neither expressed nor signaled in Williams, and in fact is unlikely to have
embraced given its citation to Booth. Furthermore, it is as well within the “common knowledge”
today as it was when Booth was decided that “retired judges…discharge[] a large measure of the
duties which would be incumbent on them, if still in regular active service.” 291 U.S. at 350.
Akins cites no decision addressing his successor judge argument, and the undersigned is aware
of none.
In view of the above, Akins’ related arguments—that the claimed lack of authority
creates “an inherent conflict of interest” related to “removal from office,” and “pecuniary”

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conflict of “interests in retaining [the] judicial office and the power and privilege associated with
it,” [Doc. 15, p. 9]—therefore fail as well.
B.

Alleged personal biases

The circumstances in which a district court judge is disqualified from hearing a case are
set out in 28 U.S.C. § 455. Section 455(a) provides that a judge shall disqualify herself in any
proceeding in which her “impartiality might reasonably be questioned[.]” An “objective standard
of reasonableness” applies in deciding a motion to disqualify. Pope v. Federal Express Corp.,
974 F.2d 982, 985 (8th Cir. 1992). “This objective standard is not a test of whether the judge, or
a party, might believe that a bias existed, but whether the ‘average person on the street’ would
question the impartiality of the judge, under the circumstances.” Id.
Section 455(b) lists specific circumstances in which recusal is required, including when a
judge has “personal bias or prejudice concerning a party” or knows she “has a financial interest
in the subject matter in controversy.” § 455(b)(1) and (b)(4). In assessing this type of claim, a
court considers only the legal sufficiency of the claim, not its factual merit. Souder v. Owens–
Corning Fiberglas Corp., 939 F.2d 647, 653 (8th Cir. 1991). Nonetheless, to succeed on a
personal bias claim, the moving party must “‘allege specific facts and not mere conclusions or
generalities.’” United States v. Anderson, 433 F.2d 856, 860 (8th Cir. 1970) (internal citation and
quotation omitted).
“Because a judge is presumed to be impartial, ‘the party seeking disqualification bears
the substantial burden of proving otherwise.’” United States v. Dehghani, 550 F.3d 716, 721
(8th Cir. 2008) (internal quotation and citation omitted). In other words, the moving party
“carries a heavy burden of proof.” Fletcher v. Conoco Pipeline Co., 323 F.3d 661, 664 (internal
quotation and citation omitted). Further, the mere filing of a motion to recuse or disqualify does

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not automatically require a trial judge to recuse. See Hayes v. Nat’l Football League, 463 F.
Supp. 1174, 1180 (C.D. Cal. 1979) (if automatic disqualification was required upon the filing of
a request for disqualification or recusal, “the floodgates would be open to ‘judge-shopping’”).
The movant’s “allegations [must] meet the substantial showing necessary to establish a clear and
indisputable right to recusal and a nondiscretionary duty on the district judge to disqualify
himself.” In re Kansas Pub. Employees Ret. Sys., 85 F.3d 1353, 1365 (8th Cir. 1996).
For the reasons discussed below, Akins’ arguments are rejected.
1. Judicial complaint in unrelated litigation
Akins claims the undersigned has personal biases against his counsel, because his counsel
previously filed a judicial complaint against the undersigned in unrelated litigation.

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identical argument was made by his counsel on behalf of the plaintiffs in Rodgers. Rejecting the
argument on appeal, the Eighth Circuit held:
That the Rodgerses’ counsel filed a judicial complaint against the
district judge in previous, unrelated litigation is insufficient to
establish that the judge’s impartiality in this matter might
reasonably be questioned.
781 F.3d at 943. See also United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008) (matters
that will not ordinarily require recusal under § 455 include “baseless personal attacks on or suits
against the judge by a party”) (and cases collected therein). Akins raises nothing new to
demonstrate the Court’s partiality might reasonably be questioned in regard to the judicial
complaint related to Coates.
2. Proceedings in prior cases
Akins argues that bias against his counsel and in favor of the City of Columbia is
demonstrated because in a prior case, the undersigned denied his counsel’s request for a trial
continuance, and in a different prior case, ordered that his counsel could not depose a particular
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witness. But adverse rulings do not constitute a basis for recusal without a clear showing of bias
or partiality. Fletcher, 323 F.3d at 665-66. See also United States v. Grinnell Corp., 384 U.S.
563, 583 (1966) (alleged personal bias must “stem from an extrajudicial source,” not from “the
judge’s view of the law”). That counsel believes his requests were appropriate and believes they
should have been granted demonstrates the good faith basis any counsel should have for
requesting relief from a court. Counsel’s belief does not constitute a clear showing of bias or
partiality.
Akins’ counsel also points to the undersigned’s discussion with the Coates parties of the
status of settlement negotiations, and he takes issue with the undersigned’s alleged endorsement
of the merit of the defendants’ proposal.

Without parsing Akins’ characterization of the

discussion, it is sufficient to note that demonstrating a judge’s familiarity with the defendants,
the type of claims at issue, and how a jury may respond, does not make the required clear
showing of bias or partiality. See United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008)
(“mere familiarity with the defendant(s) or the type of charge” at issue is not sufficient to
demonstrate bias).
3. Prior service as a City of Columbia municipal judge
Akins argues that bias in favor of the City of Columbia is demonstrated because the
undersigned previously served as a City of Columbia municipal judge. The Rodgers plaintiffs
made the identical argument concerning the undersigned, and the Eighth Circuit rejected it:
That the judge formerly served as a municipal judge in
Columbia likewise raises no reasonable question about
appearance of impartiality, and there is no evidence of bias.
781 F.3d at 943.

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4. Judge’s city and county of residence, and taxpayer status
Akins argues recusal is required because the undersigned is a longtime resident and
taxpayer of the City of Columbia and Boone County, Missouri, and a substantial verdict could
impact these two political subdivisions. The argument is merely speculative, and speculation
does not establish bias. See Sensley v. Albritton, 385 F.3d 951, 600 (5th Cir. 2004) (“where an
interest is not direct, but is remote, contingent or speculative, it is not the kind of interest which
reasonably brings into question a judge’s partiality”); In re Puget Sound Power & Light Co.,
18 F.2d 57 (9th Cir. 1927) (judge not disqualified under predecessor to 28 U.S.C. § 455 simply
because he was a taxpayer of the defendant city). Nor does the argument invoke the financial
interest provision of § 455(b)(4). “Financial interest” includes, as relevant to Akins’ motion,
“ownership of a legal or equitable interest, however small, or a relationship as a director, adviser,
or other active participant in the affairs of a party[.]” § 455(d)(4).
5. Judge’s spouse
Finally, Akins raises a new argument for recusal in his reply suggestions: that the
undersigned’s spouse, Christopher Kelly, has recently been appointed by the Columbia City
Council to lead a task force on infrastructure development, and is a lobbyist who is registered
with the Missouri Ethics Commission. [Doc. 19, p. 4.] An argument raised for the first time in
reply may properly be denied, inasmuch as the opposing party has not had the opportunity to
respond to it. But the undersigned will address it, inasmuch as it is likely the argument would be
raised again, and is being denied, for the reasons discussed below.
“[W]here an interest is not direct, but is remote, contingent or speculative, it is not the
kind of interest which reasonably brings into question a judge’s partiality.” Sensley, 385 F.3d at
600 (internal quotation and citation omitted). In Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002),

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one of the defendant board members was the social acquaintance of the judge. The Eighth
Circuit remanded the case to the district court to consider recusal under § 455(a) because “[t]he
image of one sitting in judgment over a friend's affairs would likely cause the average person in
the street to pause.” Id. at 649. In Matter of Hatcher, 150 F.3d 631 (7th Cir. 1998), the Seventh
Circuit held that recusal was warranted in order to avoid the appearance of partiality where the
judge’s son, as a third-year law student, had assisted in an earlier prosecution of a member of
same gang as the defendant. The court emphasized that this was “the rare case where the earlier
proceedings were so close to the case now before the judge that recusal under § 455(a) was the
only permissible option,” because “the indictments charged virtually the same offenses,
committed by the same people,” and the defendant in the son’s case was the unindicted coconspirator in the judge’s case and vice versa. Id. at 638.
The case now before the Court differs from both Moran and Hatcher because Mr. Kelly
has no direct interest in the proceedings. Unlike the friend in Moran and the family member in
Hatcher, he is not a party, or associated with counsel for a party, in this case. And this case is
not about infrastructure or lobbying. Thus, Akins raises no more than a remote, contingent, or
speculative interest. There is no interest Mr. Kelly could have in the outcome of this litigation.
Rather, this situation bears more similarity to cases in which courts have found recusal
not required, even though there existed a connection between the friend or family member and
one of the parties in the case. For instance, in Sensley, the judge’s wife was an at-will employee
in the District Attorney’s office, and so, the plaintiff argued, the judge and his wife had an
incentive to ensure the DA’s success. 385 F.3d at 599-600. The Fifth Circuit held that the judge
was not required to recuse himself under § 455(a) or (b) because there was “no evidence of any

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direct connection” between the judge and the case and the judge had “no direct financial interest
in the outcome of the case.” Id. at 599. The same can be said here.
Similarly, in United States v. Ibarra-Castaneda, 396 F. Supp. 2d 1004 (N.D. Iowa 2005),
the judge’s spouse held stock in the bank that served as mortgagee for the defendants’ residences
and commercial lender of loans guaranteed by the defendants. The district court determined that
recusal based on the appearance of partiality was not required because the bank was not a party
to the proceeding and was only implicated to the extent that the defendants’ sentencing might
have collateral consequences on the bank’s financial interests. Id. at 1007. See also United States
v. Vazquez-Botet, 453 F. Supp. 2d 362, 373 (D.P.R. 2006) (recusal for partiality was not required
where judge’s wife had previously represented two potential government witnesses, one of them
in the same case, but where neither potential witness was a party, representation had ended
before indictments and before the case was assigned to the judge, and the wife had never
appeared in the case); In re Drexel Burnham Lambert, 861 F.2d at 1314 (recusal for appearance
of partiality was not required where the judge’s wife had an interest in the sale of a business in
which defendant was to act as “best efforts” underwriter or “placement agent” of the debt to be
issued); Salt Lake Tribune Pub. Co., LLC v. AT&T Corp., 353 F. Supp. 2d 1160, 1177 (D. Utah
2005) (recusal was not required in a case involving the ownership of a newspaper, where the
judge had expressed gratitude to a senator for supporting his nomination, and the senator had
supported the sale of the newspaper).
In these cases, the connection between the friend or family member and one of the
parties, although tenuous, was still more direct than it is in the instant case, yet recusal was not
required in these cases. Nor is it required here.

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III.

Conclusion
Plaintiff Akins’ motion to recuse or disqualify [Doc. 15] is denied.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: July 9, 2015
Jefferson City, Missouri

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