Ragozzine v. Youngstown State University et al
Filing
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Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's motions (ECF No. 66; 67) are denied. Judge Benita Y. Pearson on 3/20/2014. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DR. FRANK RAGOZZINE,
Plaintiff,
v.
YOUNGSTOWN STATE UNIVERSITY, et
al.,
Defendants.
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CASE NO. 4:13cv750
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 66; 67]
Plaintiff was denied tenure. He filed a lawsuit alleging that discriminatory and other
illegal actions by named Defendants caused the denial. Defendants moved for summary
judgment. After reviewing the briefs and hearing oral argument, the Court granted the motion
and dismissed Plaintiff’s case. Plaintiff now moves for disqualification because, he alleges, there
was an appearance of the Court’s partiality caused by a personal relationship the Court had with a
tenured full professor at Youngstown State University (“YSU”) during the pendency of his
litigation.1 For the reasons that follow, Plaintiff’s motion to disqualify the judge is denied; his
motion to vacate prior rulings is denied; and his motion for extension of time is denied.
I. Applicable Legal Standards
The conduct of federal judicial officers is governed by Code of Conduct for United
1
Pending are Plaintiff’s Motion to Disqualify Judge and for Relief from Judgment, ECF
No. 66, and Motion for Extension of Time to file Notice of Appeal until April 25, 2014, ECF No.
67.
(4:13cv750)
States Judges. See Code of Judicial Conduct for United States Judges. The advice imparted is
organized in Canons. Canons are rules of reason. They should be applied consistently with
constitutional requirements, statutes, other court rules and decisional law, and in the context of
all relevant circumstances. The Code is to be construed so it does not impinge on the essential
independence of judges in making judicial decisions. Id.
Canon 2A instructs that a judge should avoid impropriety and the appearance of
impropriety in all activities. Id. “An appearance of impropriety occurs when reasonable minds,
with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would
conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a
judge is impaired.” Id., Commentary 2A. Canon 2B cautions that a judicial officer should not
allow relationships, including, family, social, political, financial, or other relationships to
influence judicial conduct or judgment.
Canon 3 directs that a judge should perform the duties of the office fairly, impartially and
diligently. It further instructs that a judge shall disqualify herself in a proceeding in which the
judge’s impartiality might reasonably be questioned. Id., Canon 3(C)(1). That same canon
mandates that “[a] judge should hear and decide matters assigned, unless disqualified.” Id.,
Canon 3(A)(2).
The decision of whether to recuse lies within the discretion of the trial judge. United
States v. Wilensky, 757 F.2d 594, 599–600 (3d Cir. 1985).2 There are two federal statutes that
2
In fact, the undersigned has recused in at least two other cases. See Eikleberry v
Commissioner of Social Security, No. 5:09CV2286 (N.D. Ohio filed Jan. 24, 2011), and Krug v.
Pearson, No. 4:13CV1085 (N.D. Ohio filed May 13, 2014).
2
(4:13cv750)
dictate the circumstances under which a federal judge should recuse. Plaintiff cites only one.3
Section 455(a) of Title 28 of the United States Code provides in pertinent part that “[a]ny justice,
judge, or magistrate [judge] of the United States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). When reviewing
motions for recusal, the Sixth Circuit has held that § 455(a) requires recusal “if a reasonable,
objective person, knowing all of the circumstances, would have questioned the judge’s
impartiality.” Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990); see also Liljeberg
v. Health Servs. Acquisition Corp., 486 U.S. 847, 861-63 (1988); Liteky v. United States, 510
U.S. 540, 548 (1994). However, “a federal judge has a duty to sit where not disqualified which is
equally as strong as the duty to not sit where disqualified.” Laird v. Tatum, 409 U.S. 824, 837
(1972).
II. Discussion
A.
Plaintiff asserts that the undersigned’s personal affiliation with a professor at YSU is such
that my impartiality might reasonably be questioned. In support of his contention, he declares:
3
Motions for recusal are also governed by Section 144 of Title 28 of the United States
Code. Recusal under 28 U.S.C. § 144 is mandatory “[w]henever a party to any proceeding in a
district court makes and files a timely and sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against him or in favor of any adverse
party.” 28 U.S.C. § 144. The Court presumes that Plaintiff is aware of this statute and thought it
inapplicable given that neither declaration offered in support of the motion to disqualify claims
actual bias or prejudice. See e.g. ECF No. 66-2 at ¶13 (“[t]o be very clear, I have no knowledge
of any actual bias or prejudice toward Plaintiff by the Court.”)
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•
Prior to the Court issuing a dispositive ruling in his case, he had heard a rumor that the
undersigned was seen “at some university sponsored events” with Dr. Wan-Tatah, the
other professor;
•
After the undersigned issued the adverse ruling, his counsel verified the rumor;
•
Because the professor is “not actively involved in the bargaining unit at YSU,” Plaintiff
“assume[s] that the professor’s sympathies lie with University’s administration”;
•
Plaintiff taught a class and gave a poor grade to a student whom Plaintiff believes is a
close family relative of the other professor;
•
Plaintiff does not know the other professor and has no “direct knowledge” that the
undersigned and professor have discussed his case;
•
Had he known the above information, Plaintiff would have asked that the case be
assigned to another judge.
ECF No. 66-1 at 1-2.
Plaintiff’s counsel’s declarations mimic Plaintiff’s, adding only that counsel has “no
knowledge of any actual bias or prejudice toward Plaintiff by the Court.” ECF No. 66-2 at 3,
¶12.
Until his motion to disqualify, Plaintiff pinned, as offenders against him, only the named
parties and the tenured faculty in his department. Now, he has brought within his scope the
entire College of Liberal Arts and Social Sciences, which has nine departments and a total of 242
faculty members, approximately 121 of whom are tenured.4 Professor Wan-Tatah is a tenured
member of a department different from Plaintiff’s. He is not named in the lawsuit. Professor
Wan-Tatah did not participate in the decision to deny Plaintiff tenure. Moreover, Plaintiff does
4
See http://www.ysu.edu/ (YSU main page); http://web.ysu.edu/class (College of Liberal
Arts and Social Sciences website) (last visited, March 20, 2014).
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not allege that he knows or has ever interacted with Professor Wan-Tatah.5
There is, understandably, only one dean for the entire College. He too is not a named
party.
The day before Plaintiff filed his motion, his counsel called the Court, with opposing
counsel on the line, and the Court held a telephone conference. March 10, 2014 Minutes of
Proceedings. During the telephone conversation with counsel, the Court acknowledged a
relationship with a professor at YSU and denied any impropriety, bias, prejudice, or appearance
thereof. The Court maintains that position herein. The undersigned also stated that she never
discussed this case with anyone outside of the parties and her staff prior to Plaintiff’s
allegations.6 The undersigned’s association with Professor Wan-Tatah did not obligate her to act
or to forebear acting in any way at any time.
B.
The standard for recusal is whether, under the circumstances of this case, a reasonable,
objective person knowing all the circumstances would have questioned the Court’s impartiality.
See Easley v. Univ. of Michigan Bd. of Regents, 906 F.2d 1143, 1146 (6th Cir. 1990). Informed
5
The possibility of Plaintiff having had a relative of Professor Wan-Tatah’s in one of his
classes is not relevant to his motion. The undersigned is not aware of any circumstance
regarding this allegation. Moreover, YSU is a state university with approximately 15,000
students. For the sake of providing a complete response, the undersigned offers the following
analogous advice: “if a judge is not aware that a party, law firm, or attorney in a proceeding
before the judge has a business relationship with spouse’s business, the judge’s impartiality could
not reasonably be questioned.” Advisory Opinion No. 90, p. 107-6 (emphasis added).
6
Since the allegations, the undersigned consulted an ethics professional employed by the
Administrative Office of the United States Courts.
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as Plaintiff and his counsel were prior to the filing of the motion to disqualify—that the
undersigned had no connection with any persons having knowledge about this case other than the
litigants—the undersigned finds that there is no basis upon which a reasonable, objective person
knowing these same facts would question the undersigned’s impartiality. More to the point, it is
difficult to conclude, based on the existing facts,7 that the Court’s association with another
professor at YSU would make it appear more or less likely that the Court would rule in favor of
Defendants. The logical implication of Plaintiff’s argument is that the undersigned should recuse
if she has a relationship of almost any kind with almost anyone associated with the university.
This argument is aptly belied by the Compendium8 to Advisory Opinion No. 107 (Judge’s
Recusal Due to a Spouse’s Business Relationships) which states, “a spouse’s employment as a
7
Defendants subtly invite the Court to reveal any additional facts—disclosures “beyond
what Ragozzine has raised”—should they exist. ECF No. 69 at 6. There are no such facts to be
disclosed. Plaintiff’s strained averments create the bank of data necessitating the discussion
herein.
8
The Compendium is an internal resource for judges and employees. Because the Court
finds it helpfully analagous and it is not easily accessible to the public, the complete quote of the
relevant section, 3.2-2, follows:
(f) Employment of a judge’s spouse as a program coordinator in the state office of
Substance Abuse does not require recusal in all cases in which the state is a party,
only those in which the spouse was personally involved in any way or which
involved the particular government entity the spouse works for. Similarly, a
spouse’s employment by a city library does not disqualify the judge from matters
involving the city; same for matters involving the library, unless the spouse is
personally involved or could be substantially affected by the matter. Similarly,
spouse’s employment as a university professor does not disqualify the judge from
all matters involving the university. (Emphasis added.)
See
http://jnet.ao.dcn/policy-guidance/guide-judiciary-policy/volume-2-ethics-and-judicial-conduct/p
art-b-ethics-advisory-opinions/ch-3-compendium-selected-opinions (last visited, March 20,
2014).
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university professor does not disqualify the judge from all matters involving the university.”9 See
also Easley, 906 F.2d at 1145 (ruling the judge’s graduation from a particular law school, and his
sons’ affiliations with that school, alone is an insufficient basis for recusal); Amaechi v. Univ. of
Ky. No. 09-118-KSF, 2010 WL 2559080, at * 2 (E.D.Ky. June 21, 2010) (same).
C.
Section 455(a) must not be so broadly construed that recusal is mandated upon the merest
unsubstantiated suggestion of an appearance of impropriety, personal bias or prejudice.
Tonkovich v. Kansas Bd. of Regents, 924 F.Supp.1084,1087 (D. Kan. 1996) (finding recusal not
required by circumstances including connections of circuit, district and magistrate judges to law
school). “The statute is not intended to give litigants a veto power over sitting judges, or a
vehicle for obtaining a judge of their choice.” Id. at 1087 (citing U.S. v. Cooley, 1 F.3d 985, 993
(10th Cir. 1993)).
It cannot go unsaid that, based on the facts originally argued and Plaintiff’s knowledge,
the timing of the motion to disqualify is specious. Apparently, prior to the issuance of the
adverse ruling, Plaintiff had not attached the significance he does now to the undersigned’s
association with another professor at YSU.10 Plaintiff said nothing— to his counsel, the Court or
opposing counsel—until the Court issued its ruling. The timing of the motion strongly suggests
9
The advisory opinions are on the public website, uscourts.gov,
http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02B-Ch02.p
df. (last visited, March 20, 2014).
10
The undersigned certainly does not now nor did she prior to ruling believe there was an
impropriety or the appearance thereof.
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that Plaintiff was not concerned about an appearance of impropriety until the adverse ruling.
Had the undersigned been afforded the opportunity, before issuing the ruling, she would
have acknowledged the association and explained why, viewing all relevant circumstances, the
allegations did not raise a reasonable appearance of partiality, bias or other basis for disclosure or
recusal. Taken as a whole, the allegations of Plaintiff, including the embellishment of now
purportedly relevant facts, are more likely to suggest to a reasonable person that Plaintiff is
shopping for a different judge and/or a different result, rather than appealing to the U.S. Court of
Appeals. See e.g., H.R. REP. NO. 93–1453 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355
(“in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to
avoid the possibility that those who would question his impartiality are in fact seeking to avoid
the consequences of his expected adverse decision.”).
That said, the specious timing does not obviate the undersigned’s sworn obligation to
promote public confidence in the integrity of the judicial process; to serve when able; and, as
importantly, to disqualify herself when appropriate. As the parties acknowledge, the decision to
disqualify should not be made lightly. It is a serious decision that deserves somber
contemplation. Having conducted that contemplation, I refuse to disqualify myself. A judge has
an obligation to recuse herself when there is good reason to do so. She has an equal obligation
not to recuse herself when there is no reason to do so. There is no impropriety justifying
disqualification in the case at bar. In my humble opinion, no reasonable, objective person
viewing the relevant circumstances would reach a different conclusion.
The motion to disqualify is denied.
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D.
Because there is no basis for disqualification, the motion to vacate the prior rulings is
denied. A motion to recuse a federal judge under 28 U.S.C. 455(a) is subject to the limitation
known as the “extrajudicial source” doctrine, Liteky, 510 U.S. at 554-55, and judicial rulings
alone rarely constitute a valid basis for a motion for disqualification for bias or partiality. Id. at
555.
E.
Because Rule 4(a)(4)(A)(vi) of the Federal Rules of Appellate Procedure relieves
compression caused by a Fed. R. Civ. P. 60(b) motion, there is no legitimate basis for the 30-day
extension of time requested by Plaintiff. For this reason the motion for extension of time is
denied.
III. Conclusion
For the reasons expressed above, Plaintiff’s motions (ECF No. 66; 67) are denied.
IT IS SO ORDERED.
March 20, 2014
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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