Bourne v. New Hampshire, State of, et al

Filing 18

ORDER denying 4 Motion for Recusal and Change of Venue. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne
v.
State of New Hampshire et al.1

Civil No. 12-cv-251-PB
Opinion No. 2012 DNH 158

O R D E R
Before the court is plaintiff's motion for recusal and
change of venue.

Defendants have objected (Doc. No. 5).

Bourne

has replied (Doc. No. 7) and filed two supplements to the motion
(Doc. Nos. 9 and 17).

For the following reasons, the motion for

recusal and change of venue (Doc. No. 4) is denied.

Discussion
I.

Recusal
A federal statute, 28 U.S.C. § 455, governs the recusal of

federal judges and magistrate judges.

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I must recuse myself if

Defendants in this action are: the State of New Hampshire;
the New Hampshire Supreme Court (“NHSC”); NHSC Justices Linda
Stewart Dalianis, James E. Duggan, Gary E. Hicks, Robert J.
Lynn, and Carol Ann Conboy; and NHSC Clerk Eileen Fox.

my “impartiality might reasonably be questioned,” id. § 455(a),2
and in close cases, doubts are to be resolved in favor of
recusal.
2000).

See United States v. Snyder, 235 F.3d 42, 46 (1st Cir.
The inquiry is objective, from the perspective of a

“reasonable person,” not one who is “‘hypersensitive or unduly
suspicious,’” but one who is a “‘well-informed, thoughtful
observer,’” who is aware of all of the surrounding facts and
circumstances.

United States v. Sierra Pac. Indus., 759 F.

Supp. 2d 1198, 1203 (E.D. Cal. 2010) (quoting United States v.
Holland, 519 F.3d 909, 913 (9th Cir. 2008)); see also United
States v. Pulido, 566 F.3d 52, 62 (1st Cir. 2009), cert. denied,
131 S. Ct. 632 (2010).

To avoid delays and a waste of judicial

resources, unnecessary recusals are to be avoided.
F.3d at 46.

Snyder, 235

(“Thus, under § 455(a) a judge has a duty to recuse

himself if his impartiality can reasonably be questioned; but
otherwise, he has a duty to sit.” (footnote omitted)).
To support his contention that I should be recused from the
case, Bourne asserts the following:
1.
I served as an assistant attorney general for the
State of New Hampshire from 1980 to 1984, as counsel for
United States Senator Warren Rudman from 1984 to 1986, and
as Deputy Chief Counsel to the United States Senate
Committee on Secret Military Assistance to Iran and the
2

Canon 3(C)(1) of the Code of Conduct for United States
Judges also requires recusal where “the judge’s impartiality
might reasonably be questioned.”
2

Nicaraguan Opposition, in 1987.
2.
I was appointed to this court upon recommendations
made to the President, and, Bourne alleges, it is “widely
known” that I and other judges were “politically appointed
by the recommendations of the State Defendants.”
3.
I have appeared in a photograph with Governor Lynch,
congratulating a newly-naturalized citizen, following her
naturalization, at which I officiated.
4.
I issued rulings adverse to Bourne in prior
litigation, Bourne v. Stewart Title Guaranty Co., 09-CV270-PB (D.N.H.).
I address each contention in turn.
First, my prior state government service occurred at the
onset of my legal career, almost thirty years ago, and lasted
for less than five years.

That past employment relationship

with the Attorney General’s office was so remote in time and
unrelated to the issues here, that no objective observer would
question my impartiality in this case.

See Arnell v. McAdam,

No. 07CV0743-LAB(RBB), 2007 WL 2021826, at *2 (S.D. Cal. July
10, 2007) (employment with district attorney’s office, ending
twenty-two years ago, would not raise reasonable questions as to
judge’s impartiality).

Nor would any objective observer

question my impartiality based on my service as counsel to
Senator Rudman and to a Senate committee in the Iran Contra
inquiry, occurring more than twenty years ago.

Bourne has

alleged no facts, and the court is aware of none, that would
give rise to any conflict of interest relating to those
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associations.
Second, Bourne’s claim about politics and the judiciary,
namely, the alleged common knowledge that the “State defendants”
made “recommendations” regarding each judge’s appointment to
this court, is neither substantiated nor accurate in my case.
Bourne provides no evidence to support his claim, and I am aware
of none.

While members of the Bar and others may have contacted

the President in connection with my appointment, after due
inquiry, I have found no records suggesting that any defendant
in this case made such a recommendation.

I find that no

objective, well-informed observer, aware of all of the relevant
circumstances here, would question my impartiality in this case
based on Bourne’s bald assertions.

Cf. In re Mason, 916 F.2d

384, 387 (7th Cir. 1990) (reasonable, well-informed observers of
federal judiciary understand that “[j]udges with tenure need not
toady, and don't[;] Chief Justice Burger wrote an opinion that
led to the resignation of the President who gave him that
office” (citing United States v. Nixon, 418 U.S. 683 (1974))).
By the same token, the photo of me standing with Gov.
Lynch, congratulating a newly-naturalized citizen following her
naturalization, provides no grounds for disqualification.

I

officiated at the naturalization, and Gov. Lynch attended it.
The caption identifies each of us and provides information about
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the citizen’s background, indicating that the photo may have
accompanied a news story on the naturalization ceremony.

See

Ex. 2 to Pl.’s Addendum to Mot. to Change Venue (doc. no. 17-2).
The citizen is not a party here, and Gov. Lynch is named only in
his capacity as the State’s chief executive.

No objective

observer, aware of all of the circumstances, would find that the
photo raises any reasonable question concerning my impartiality.
Furthermore, the rulings that I issued in prior litigation
involving Bourne do not generate a reasonable basis upon which
to question my impartiality.

See Pulido, 566 F.3d at 62

(opinions issued by judges based on facts introduced in prior
proceedings “‘do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible’” (quoting
Liteky v. United States, 510 U.S. 540, 555 (1994))).

Put

another way, Bourne’s fervent disagreement with the reasoning or
effect of my prior rulings does not raise any reasonable
question about my impartiality.
Bourne’s remaining contentions warrant few words.

A third

party lawyer’s prediction in discussions with Bourne in a
different case, regarding the likely disposition of this case,
provides no basis for disqualification.

That remark does not in

any way suggest that dismissal would result from any improper
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considerations or partiality.
Bourne also seeks the recusal of the magistrate judge and
other judges in this court, by pointing to their prior state
employment, as well as defendant Justice Carol Ann Conboy’s term
as a law clerk for United States District Judge Shane Devine
from 1978-1979, two decades before Judge Devine’s death.

Chief

Judge Laplante has recused himself from this case, see Order
(Doc. No. 13), the remaining sitting judges are not assigned to
it, and no issue in this matter is presently before the
magistrate judge.

The motion for recusal as to those judicial

officers is thus not ripe, and merits no further consideration.
II.

Change of Venue
Bourne premises his request for a change of venue solely

upon his contention that all of the judges in this court should
be recused.

As explained above, neither my recusal nor the

wholesale recusal of the judges of this court is warranted.

I

find no basis for concluding that either the interests of
justice or the convenience of the parties warrants a transfer to
a different district.

See 28 U.S.C. § 1404.

Accordingly, I

deny the motion for a change of venue.

Conclusion
For the foregoing reasons, the motion to recuse and to
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change venue (Doc. No. 4) is denied.
SO ORDERED.

/s/Paul Barbadoro
Paul J. Barbadoro
United States District Judge
September 11, 2012
cc:

Samuel J. Bourne, pro se
Nancy J. Smith, Esq.

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