Akins v. Knight et al

Filing 47

ORDER entered by Judge Nanette Laughrey. Plaintiff Akins' 2d Request for the Court to Recuse, and/or in the Alternative to a Motion to Disqualify the Judge for Bias, and/or in the Alternative for Lack of Congressional Commission to Preside Over an Article III Court, doc. 46 , 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’ “2d Request for the Court to Recuse, and/or in the
Alternative to a Motion to Disqualify the Judge for Bias, and/or in the Alternative for Lack of
Congressional Commission to Preside Over an Article III Court” [Doc. 46] is denied.
I.

Discussion
A.

Previously rejected arguments

Akins requests that the undersigned recuse or be disqualified from hearing this case on
several grounds. Most of the grounds are the same as the ones he relied on in his first motion to
recuse or disqualify, filed June 23, 2015: lack of congressional authority of judges who have
senior status; personal bias against his counsel and in favor of the City of Columbia, based on
counsel’s filing of a prior judicial complaint, and the undersigned’s handling of cases against the
City of Columbia brought by Allan Rodgers, Gregory Rodgers, and Crystal Coates; the
undersigned’s prior service as a municipal judge; the undersigned’s place of residence and
taxpayer status; and lobbyist activities of the undersigned’s spouse. [See Doc. 15, and Doc. 46,
pp. 1-6, ¶¶ 2-4, and 8-15.] The Court addressed and rejected each of these grounds in its Order
of July 9, 2015, in which it denied Akins’ first motion to recuse or disqualify. [Doc. 26.] The
Court rejects those grounds again with respect to Akins’ present motion, for the same reasons
stated in its Order of July 9, 2015, and incorporates that prior analysis by reference.

B.

New arguments

Akins adds a few new grounds to his present motion. They are addressed in turn below,
and all fail.
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. See also Mathis v. Huff &
Puff Trucking, Inc., 787 F.3d 1297, 1310 (10th Cir. 2015) (describing §455(a)’s objective
standard as providing for “disqualification … only where the reasonable person, were he to know
all the circumstances, would harbor doubts about the judge's impartiality”). A court “must ask
how these facts would appear to a well-informed, thoughtful and objective observer, rather than
the hypersensitive, cynical, and suspicious person.” Id. (quoting Sensley v. Albritton, 385 F.3d
591, 599 (5th Cir. 2004), and citing In re Sherwin–Williams Co., 607 F.3d 474, 478 (7th Cir.
2010)).
Section 455(b) lists specific circumstances in which recusal is required, including when a
judge has “personal bias or prejudice concerning a party[.]” § 455(b)(1). 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
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substantial burden of proving otherwise.” United States v. Dehghani, 550 F.3d 716, 721 (8th Cir.
2008) (internal quotation and citation omitted).
1.

Adverse rulings in cases filed by Josh Williams and Philip Porter, Jr.

Akins argues that bias in favor of the City of Columbia is demonstrated by this Court’s
rulings against Josh Williams and Philip Porter, Jr., and in favor of the City, in civil rights cases
concerning a seizure and detention. [Doc. 46, p. 3, ¶¶ 6-7.]

The existence of a ruling with

which a litigant disagrees does not constitute a basis for recusal without a clear showing of bias
or partiality. Fletcher v. Conoco Pipeline, Inc., 323 F.3d 661, 665-66 (8th Cir. 2003). An alleged
personal bias must “stem from an extrajudicial source,” not from “the judge’s view of the law[.]”
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). Thus, Akins does not and cannot
demonstrate bias by pointing to the Court’s rulings in the Williams and Porter cases. 1
2.

Video report

Akins, “reporting for” and “on behalf of” Citizens for Justice, “filed a two-part video
report” about an incident concerning Josh Williams, Philip Porter, and City of Columbia police
officers, which formed the basis for a civil rights lawsuit heard by this Court. [Doc. 46, p. 1, ¶ 1;
p. 13.] He states the video report is “essential evidence” that he plans to offer at trial because it
contributed to Columbia police officers’ “retaliatory animus against” him. [Id. at p. 1.] He
argues jurors will be biased against the video report because it is critical of the Court’s ruling in
Williams and Porter’s cases, and will be confused by the report’s reference to the Court and
unsure of what evidentiary value to give the report. [Doc. 46, p. 1, ¶ 1.] Therefore, Akins
argues, recusal or disqualification is required. The argument fails.
First, Akins cites no authority for the proposition that potential juror confusion
constitutes a basis for and requires recusal or disqualification, and the Court is not aware of any.

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In any event, the Eighth Circuit Court of Appeals affirmed those rulings. See
Williams v. Decker, 767 F.3d 734 (8th Cir. 2014).
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In any event, a request for recusal or disqualification cannot be based on speculation. See
In re Kansas Pub. Employees Ret. Sys., 85 F.3d 1353, 1365 (8th Cir. 1996) (a 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”). The
Court cannot, at this time, determine whether the report will be admissible at trial, and if so,
whether any limiting instruction could or would be given. In other words, Akins’ argument
about juror confusion fails because it is a based upon speculation as to what may be admitted
and how the jury would be instructed.
Also, the existence of a media report that is critical of a court’s ruling does not determine
whether recusal or disqualification is warranted. See, e.g., Little Rock Sch. Dist. v. Arkansas
State Bd. of Educ., 902 F.2d 1289, 1292 (8th Cir. 1990). The non-dispositive nature of such a
report is all the more highlighted here, where the party seeking recusal or disqualification
prepared the report upon which he relies. “[A] party cannot force a judge to recuse himself or
herself merely by launching inflammatory personal attacks on the judge and then claiming that
the attacks were so offensive that the judge must be biased.” In re Yehud-Monosson USA, Inc.,
472 B.R. 868, 878-79 (D. Minn. 2012), aff'd sub nom. Isaacson v. Manty, 721 F.3d 533 (8th Cir.
2013) (and citations therein). Otherwise, judge-shopping would be encouraged. Id. See also In
re Union Leader Corp., 292 F.2d 381, 389 (1st Cir. 1961) (stating that “[a] judge lives in an
atmosphere of strife, in which, by nature and experience,” the judge is expected to be a person of
“fortitude,” and finding that the judge, who had been personally attacked in editorials published
by the petitioner, was not required to recuse himself).
The video report does not constitute a basis for recusal or disqualification.
3.

Judge’s spouse

Akins states the undersigned’s spouse, Mr. Kelly, criticized a citizen who “was
promoting a petition calling upon the U.S. Supreme Court to hear the case of Williams v. Decker
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from the Eighth Circuit in January 2014, based upon the District Court ruling[.]” [Doc. 46, p. 2,
¶ 5.]
Akins does not explain how such a criticism would demonstrate personal bias in this case
on the part of the undersigned. Such criticism establishes no interest, as provided in 28 U.S.C.A.
§ 455(b), in the outcome of this case on the part of Mr. Kelly. As to any views Mr. Kelly may
express on a subject that has come before this Court, he is an independent person who need not
obtain the undersigned’s approval or agreement to speak about whatever subject he chooses. His
views are his own.

The average person on the street would not reasonably believe the

undersigned would approach a case in a partial manner due to Mr. Kelly’s independent views
regarding a subject, whether those views are publicly expressed or not. Id. at § 455(a) (“Any
justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.”) See also Perry v. Schwarzenegger,
630 F.3d 909, 915-16 (9th Cir. 2011) (the strongly-held beliefs of the judge’s wife, who publicly
stated her beliefs both individually and in her capacity as Executive Director of the American
Civil Liberties Union of Southern California, were her own beliefs, which she held as an
independent person, and the judge did not base his rulings on them; appellant’s motion to recuse
denied). Accordingly, public commentary by the undersigned’s spouse does not constitute a
basis for recusal or disqualification.
Akins also points to an article dated September 24, 2015, concerning Mr. Kelly’s
appointment to a City of Columbia task force, and noting, with criticism, the Court’s ruling in
another case concerning the City of Columbia. The Court addressed the task force issue in its
Order of July 9, 2015. [Doc. 26, pp. 7-9.] And as noted above, neither a judge’s view of the
law, nor the existence of a critical media report, establishes that recusal or disqualification is
warranted. Fletcher, 323 F.3d at 665-66; Little Rock Sch. Dist., 902 F.2d at 1292. The article
does not change the analysis.
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4.

Totality of the circumstances

Finally, Akins suggests he is entitled to relief based on the totality of the circumstances:
Due process requires judicial recusal from ruling on the Akins’ 2d
Motion to Disqualify. The nature of the motion, the potential
consequence to Judge Laughrey. Matt Akins reporting for Citizens
for Justice that contains commentary critical of Judge Laughrey’s
rulings. The involvement of Chris Kelly with the City of Columbia
and his effort to dissuade a citizen petition calling for a review of
Judge Laughrey’s ruling. Judge Laughrey’s previous relationship
with Columbia as a municipal judge, and the judicial complaint
filed against her by Akins’ instant counsel combined to create a
potential for bias that was too high to be constitutionally tolerable.
The right to a fair trial is proclaimed in the Sixth Amendment,
allowing Judge Laughrey to hear this case due to her biases will
violate Matthew Akins’ due process right to a fair trial.
[Doc. 46, p. 13.]
The Court concludes that a reasonable person, knowing all the circumstances, would not
question the undersigned’s impartiality. See Pope, 974 F.2d at 985; Mathis, 787 F.3d at 1310.
The Court has specifically addressed herein, and in its Order of July 9, 2015, why each of Akins’
individual arguments fails. And Akins points to no authority supporting the proposition that
combining several insufficient arguments for recusal establishes doubt about a court’s
impartiality. Akins simply has not born his “substantial burden.” Dehghani, 550 F.3d at 721.
Akins’ final argument therefore fails.
II.

Conclusion
Plaintiff Akins’ “2d Request for the Court to Recuse, and/or in the Alternative to a

Motion to Disqualify the Judge for Bias, and/or in the Alternative for Lack of Congressional
Commission to Preside Over an Article III Court” [Doc. 46] is denied.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: January 11, 2016
Jefferson City, Missouri
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