McCubbin v. Weber County et al

Filing 214

MEMORANDUM DECISION AND ORDER denying 203 Motion to Disqualify Judge. Signed by Judge Ted Stewart on 1/7/2020. (las)

Case 1:15-cv-00132-CW-CMR Document 214 Filed 01/07/20 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
LELAND KIM McCUBBIN, JR. and
DANIEL JOSEPH LUCERO,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANTS’
MOTION TO DISQUALIFY JUDGE

Plaintiffs,
v.
WEBER COUNTY, OGDEN CITY, and
CHRISTOPHER ALLRED, in his official
capacity,

Case No. 1:15-CV-132 CW-CMR
District Judge Ted Stewart

Defendants.

This matter is before the Court on a Motion to Disqualify Judge filed by Defendants
Weber County and Christopher Allred (collectively, “Defendants”). This Motion has been
referred to the undersigned by Chief Judge Robert J. Shelby. For the reasons discussed below,
the Court will deny Defendants’ Motion.
I. BACKGROUND
Plaintiffs brought this civil rights suit after having been subjected to a gang injunction.
Among other things, Plaintiff requested declaratory judgment that any attempt to serve them with
an identical injunction would violate their civil rights. Plaintiffs also requested removal from the
gang database allegedly maintained by Weber County and Ogden City.
In response, Defendants moved for summary judgment. Relevant here, Defendants
argued that Plaintiffs’ claims for prospective relief were moot because: (1) Weber County does
not possess a gang database; and (2) Weber County would not seek an identical injunction.

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Support for these arguments came from the Declarations of current Weber County
Attorney Christopher Allred and former Weber County Attorney Dee Smith. Both Mr. Allred
and Mr. Smith stated: “Weber County has never kept a database or any sort of list of Ogden
Trece gang members nor has Weber County ever had the ability to put a person on the Ogden
Trece Database or remove a person from the list.” 1 In his Second Declaration, Mr. Allred stated
that Weber County would not seek a gang injunction order that is exactly like the previous
injunction. 2 While Weber County continued to contemplate a potential future injunction, “no
definite plans, actions, or steps have been taken toward actually filing and obtaining an
injunctive order of any kind against any gang.” 3 Finally, in his Third Declaration, Mr. Allred
stated that, to his knowledge, there was not an “official or unofficial list, database, or
handwritten notes related to gang membership that Weber County owns, possesses, or controls.” 4
Additionally, Mr. Allred stated that “[n]obody at the Weber County Attorney’s Office ever used
any gang information, from a database or otherwise, that was owned or controlled by Weber
County, for any purpose, including in deciding who to serve with the Injunction.” 5
In a Memorandum Decision and Order dated September 27, 2019 (“Memorandum
Decision and Order”), Judge Waddoups rejected Defendants’ mootness arguments. With respect
to the existence of a gang database, Judge Waddoups found, based on the testimony of a Weber

1

Docket No. 115 ¶ 10; Docket No. 116 ¶ 7.

2

Docket No. 157 ¶ 27.

3

Id. ¶ 29.

4

Docket No. 178 ¶ 40.

5

Id. ¶ 41 (emphasis added).

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county jail investigator who testified that he started gang files, that there was a dispute of fact as
to whether Weber County possesses files regarding gang membership. 6
Judge Waddoups then went further, stating that there were additional reasons to deny
Defendants’ motion on this issue. Specifically, Judge Waddoups stated that he had “reason to
question Mr. Allred’s representations” concerning the existence of a gang database. 7 These
questions arose from two sources. The first was an evidentiary hearing Judge Waddoups
conducted in an unrelated criminal case. There, a Weber County corrections officer testified that
he “worked on establishing the gang unit inside of the jail where we would document all of the
gang members inside the jail and create a -- basically a hierarchy of the different gangs.” 8
After hearing this testimony, Judge Waddoups “performed a search on Google, using the
search term ‘weber county jail gang unit.’ The first result from that search yielded a webpage
maintained by Weber County Sheriff’s Office titled ‘Jail investigations.’” 9 That webpage stated,
in pertinent part, that jail investigators “use jail intelligence information to document inmates as
gang members.” 10 That information is then provided to various state and federal agencies,
including the Weber County Attorney’s Office, and has been useful to agencies investigating and
prosecuting criminal activity committed by gang members. 11
This information made it hard for Judge Waddoups “to understand how Mr. Allred could
have submitted a declaration in 2018, under penalty of perjury, representing to this court that
6

Docket No. 199, at 18–19.

7

Id. at 20.

8

Docket No. 208 Ex. 3, at 12.

9

Docket No. 199, at 22.

10

Id.; see also Docket No. 208 Ex. 4.

11

Docket No. 199, at 22; see also Docket No. 208 Ex. 4.

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‘there is not any official or unofficial list, database, or handwritten notes related to gang
membership that Weber County owns, possesses, or controls.’” 12 Judge Waddoups also stated
that this evidence “appears to contradict Chris Allred’s representation that ‘[n]obody at the
Weber County Attorney’s Office ever used any gang information from a database or otherwise,
that was owned or controlled by Weber County, for any purpose . . . .’” 13
Judge Waddoups pointed to the same evidence in rejecting Defendants’ arguments
related to voluntary cessation. In doing so, Judge Waddoups sought to distinguish this case from
Brown v. Buhman. 14 In Brown, the Tenth Circuit found that an action was moot where a county
prosecutor declared under penalty of perjury that the plaintiffs would not be prosecuted for
bigamy. 15 With no credible threat of prosecution, the plaintiffs’ claims were moot. The court
stated that it had “no basis to question [the prosecutor’s] bona fides” and, in order to find that the
voluntary cessation was a sham, “we would have to conclude the highest-ranking law
enforcement official in Utah County had engaged in deliberate misrepresentation to the court.” 16
The court stated there “was no basis for this conclusion. Close scrutiny of the relevant facts does
not suggest [the prosecutor] is attempting to deceive the court.” 17
In contrast, Judge Waddoups stated:
But unlike the County Attorney in Brown, this court has a reason to question
Chris Allred’s bona fides. As discussed at length above, Chris Allred submitted
multiple declarations under penalty of perjury representing that Weber County
12

Id. at 23 (quoting Docket No. 178 ¶ 40).

13

Id. (quoting Docket No. 178 ¶ 41).

14

822 F.3d 1151 (10th Cir. 2016).

15

Id. at 1170.

16

Id. at 1170, 1171.

17

Id. at 1170.

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never possessed any gang database/list. And, as discussed at length above, the
court has serious reason to question that representation. “Close scrutiny of the
relevant facts” may suggest that Chris Allred “is attempting to deceive the court.”
At this time, the court has reason to question Chris Allred’s credibility. The court
cannot, at this time, take Mr. Allred at his word that he will not seek a
substantially similar injunction. Nor can the court, at this time, accept Mr.
Allred’s representation that he would not serve the plaintiffs in this case with a
future injunction. At this time, the court cannot conclude that Weber County has
met its heavy burden of persuading the court that the challenged conduct cannot
reasonably be expected to recur. 18
Judge Waddoups went on to provide Defendants an opportunity to respond to his
concerns and offered to hold an evidentiary hearing on the issue of mootness. At that hearing,
Mr. Allred would be provided an opportunity to “explain the apparent contradiction between his
sworn representations” and the evidence discussed above. 19
Defendants filed the instant Motion on October 23, 2019. Defendants complaints can be
summarized as follows:
In this case, the Judge heard a witness testify on some background facts that gave
the appearance that the Judge became prejudiced or biased against Defendant
Weber County Attorney Chris Allred and former Weber County Attorney Dee
Smith. He then took that information to perform his own “Google” research,
undirected by the parties. The parties never had an opportunity to refute or
respond to the information gained by the Judge. The Judge then concluded that it
appeared that Chris Allred and Dee Smith submitted false declarations and denied
two or more claims on summary judgment because Chris Allred’s “bona fides”
are now questioned by the court. However, the only reason his “bona fides” were
question was because of the testimony of just one witness at a criminal motion to
suppress hearing. A reasonable person could assume that Judge Waddoups has a
biased view of whether Defendants will submit false testimony. 20

18

Docket No. 199, at 29 (quoting Brown, 822 F.3d at 1170).

19

Id.

20

Docket No. 203, at 8.

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II. DISCUSSION
Defendants argue that Judge Waddoups should be disqualified because of the appearance
of prejudice or bias against Defendants. Defendants bring their Motion pursuant to 28 U.S.C. §
144 and 28 U.S.C. § 455(a).
Section 144 provides:
Whenever 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, such judge shall proceed no further therein, but another judge shall be
assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the beginning of
the term at which the proceeding is to be heard, or good cause shall be shown for
failure to file it within such time. A party may file only one such affidavit in any
case. It shall be accompanied by a certificate of counsel of record stating that it is
made in good faith
Under 28 U.S.C. § 144, an affidavit of bias and prejudice must be timely, sufficient,
made by a party, and accompanied by a certificate of good faith of counsel. 21 Because of the
possibility of abuse, strict compliance with the procedural requirements is required. 22
Defendants have failed to strictly comply with the requirements of § 144. Specifically,
Defendants’ Motion and affidavits were not accompanied by a certificate of counsel. Defendants
argue that the Court should construe the “Introduction” section to its Motion as a certificate of
counsel. However, strict compliance with the procedural requirements of the statute is required.
The Introduction to the Motion is not sufficient to be considered a certificate of counsel.

21

Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir. 1987).

22

Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988); United States v. Sykes, 7 F.3d
1331, 1339 (7th Cir. 1993).

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Defendants also argue that the Declaration of Christopher Allred satisfies the
requirements of the statute. Defendants point out that Mr. Allred is an attorney and his
Declaration states that the Motion is brought in good faith. However, Mr. Allred is not “counsel
of record,” as required by the statute. Therefore, his Declaration does not satisfy the
requirements of the statute.
Defendants further argue that any failure was subsequently cured when counsel filed a
Certificate of Counsel on November 6, 2019. 23 However, this was done only after Plaintiffs
pointed out that Defendants had failed to comply with the requirements of § 144. Moreover, the
statute requires the affidavit be accompanied by the certificate of counsel. Defendants’ late
filing did not accompany the affidavit and the timing of it makes the Motion untimely under §
144. These procedural defects defeat Defendants’ Motion under this provision. Therefore, the
Court will limit its discussion to § 455(a).
Section 455(a) states 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.” “A judge has a continuing duty to recuse under § 455(a) if sufficient factual
grounds exist to cause a reasonable, objective person, knowing all the relevant facts, to question
the judge’s impartiality.” 24 However, “[t]here is as much obligation for a judge not to recuse
when there is no occasion for him to do so as there is for him to do so when there is.” 25

23

Docket No. 209.

24

United States v. Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000).

25

Hinman, 831 F.2d at 939.

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Plaintiffs argue that Defendants’ Motion is untimely. “A motion to recuse under section
455(a) must be timely filed.” 26 While there is no precise moment when a motion must be filed,
Tenth Circuit precedent “requires a party to act promptly once it knows of the facts on which it
relies in its motion.” 27 “A promptly filed motion conserves judicial resources and alleviates the
concern that it is motivated by adverse rulings or an attempt to manipulate the judicial
process.” 28
The Court need not decide whether Defendants’ Motion is timely under § 455 because it
fails on the merits. Defendants’ Motion is largely based on conclusions reached by Judge
Waddoups’ in his Memorandum Decision and Order. The Supreme Court has held that “judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.” 29
“Unfavorable judicial rulings do not in themselves call into question the impartiality of a
judge.” 30 Such rulings can “only in the rarest circumstances evidence the degree of favoritism or
antagonism required.” 31
Judge Waddoups’ rulings do not evidence the degree of favoritism or antagonism
required for recusal. Instead, Defendants largely take issue with the correctness of these rulings,
including whether Judge Waddoups should have taken judicial notice of the evidence that

26

Wilmer v. Univ. of Kan., 848 F.2d 1023, 1028 (10th Cir. 1988).

27

Pearson, 203 F.3d at 1276.

28

Id.

29

Liteky v. United States, 510 U.S. 540, 555 (1994).

30

United States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006).

31

Liteky, 510 U.S. at 555.

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provided the basis for his conclusions. However, the proper vehicle to address erroneous rulings
is appeal, not recusal. 32
Defendants also argue that Judge Waddoups’ statements demonstrate that he has formed
an opinion that Mr. Allred and Mr. Smith have been untruthful.
[O]pinions 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 that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge. They may do so if they reveal an opinion that derives
from an extrajudicial source; and they will do so if they reveal such a high degree
of favoritism or antagonism as to make fair judgment impossible. 33
“[E]xpressions of impatience, dissatisfaction, annoyance, and even anger, that are within
the bounds of what imperfect men and women . . . sometimes display” are insufficient. 34 “A
judge’s ordinary efforts at courtroom administration—even a stern and short-tempered judge’s
ordinary efforts at courtroom administration—remain immune.” 35
Having carefully reviewed the Memorandum Decision and Order, the Court cannot
conclude that Judge Waddoups’ comments “display a deep-seated antagonism that would make
fair judgment impossible.” 36 The context in which these statements were made is important.
Judge Waddoups was ruling on a motion for summary judgment filed by Defendants. In doing
so, he was required to construe all facts and reasonable inferences in the light most favorable to

32

Id.

33

Id.

34

Id. at 555–56.

35

Id. at 556.

36

Pearson, 203 F.3d at 1277.

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Plaintiffs as the nonmoving party. 37 In reaching the conclusions he did, Judge Waddoups was
doing what judges do every day. Moreover, many of the alleged offending statements were
made in an effort to distinguish the facts of this case from those in Brown.
Defendants also overstate their case. They argue that Judge Waddoups: “assumed that
the current and former Weber County Attorneys were lying under oath and adopted that belief in
his memorandum decision,” 38 “is seemingly trying to embarrass or defame these County
Attorneys,” 39 “assumes in his decision that they have submitted false affidavits and that their
word cannot be trusted,” 40 is “convinced that Allred and Smith have lied in their declarations,” 41
and “has established that he believes he cannot trust the word of two material witnesses in
Defendants’ case.” 42
Defendants hyperbolic statements are not a fair or accurate reflection of Judge
Waddoups’ decision. Judge Waddoups made no finding that Mr. Allred or Mr. Smith lied or that
they cannot be trusted. Instead, he pointed out evidence that he believed contradicted statements
they had made, thereby creating a dispute of fact precluding summary judgment. This is
unremarkable. Judge Waddoups then provided Defendants the opportunity to respond to his
concerns by holding an evidentiary hearing on mootness. Had Judge Waddoups truly determined

37

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
38

Docket No. 203, at 2.

39

Id. at 4.

40

Id.

41

Id. at 5.

42

Id.

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that Mr. Allred and Mr. Smith could not be trusted, it seems unlikely that he would provide them
this opportunity.
To be sure, the accusation that anyone may have submitted false testimony to the Court is
a serious one. However, Defendants have failed to demonstrate that a reasonable person,
knowing all the relevant facts, would harbor doubts about Judge Waddoups’ impartiality.
Rather, Judge Waddoups’ actions reflect a desire to maintain the integrity of this proceeding. To
the extent Defendants believe that Judge Waddoups’ decision was incorrect, there are other
avenues available to them.
Defendants make two other arguments, neither of which justifies disqualification.
Defendants point out that Plaintiffs’ counsel was once a law clerk for Judge Waddoups.
However, they do not suggest that this prior relationship has in any way affected these
proceedings. Next, Defendants make the spurious accusation that “there is a reasonable
likelihood that it could be perceived that the Judge was trying to defame the elected Weber
County Attorney, knowing that his words would be published in the media.” 43 Defendants offer
nothing to support this claim. “A judge should not recuse himself on unsupported, irrational, or
highly tenuous speculation.” 44
III. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion to Disqualify Judge (Docket No. 203) is DENIED.

43

Docket No. 203, at 6.

44

Hinman, 831 F.2d at 939.

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DATED this 7th day of January, 2020.
BY THE COURT:

Ted Stewart
United States District Judge

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