Hardy v. City of Milwaukee et al

Filing 258

ORDER by Judge J P Stadtmueller DENYING 253 City of Milwaukee's Motion to Disqualify Judge (cc: all counsel) (vkb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEO HARDY,
Plaintiff,
v.

Case No. 13-CV-769-JPS

CITY OF MILWAUKEE, MICHAEL GASSER,
KEITH GARLAND, JR., and
MICHAEL VALUCH, JR.,
Defendants.
CHAVIES HOSKIN,
Plaintiff,
v.

Case No. 13-CV-920-JPS

CITY OF MILWAUKEE, EDWARD FLYNN,
EDITH HUDSON, JASON MUCHA,
MICHAEL VAGNINI, and THOMAS MAGLIO,
Defendants.
EDWARD EARL WRIGHT,
Plaintiff,
Case No. 14-CV-1224-JPS

v.
MICHAEL VAGNINI, JACOB KNIGHT,
JEFFREY CLINE, GREGORY M. KUSPA,
JASON MUCHA, EDWARD FLYNN, and
CITY OF MILWAUKEE,
Defendants.
JERMAIN CAINE,
Plaintiff,
v.

Case No. 14-CV-1548-JPS

CITY OF MILWAUKEE, EDWARD FLYNN,
EDITH HUDSON, JASON MUCHA,
MICHAEL VAGNINI, JACOB KNIGHT, and
JEFFREY DOLLHOPF,
Defendants.

ORDER

The above-captioned cases come before me on a Milwaukee Deputy
City Attorney’s separately-filed motions, which request that I disqualify
myself from further participation in each of these cases. The cases all stem
from alleged strip searches conducted by officers of the Milwaukee Police

Department. I have been assigned to preside over each case, but the
defendants now request that I step aside.
In my role as presiding judge, I have rendered decisions that are
unfavorable to the City.1 However, I have also decided against the plaintiffs
on important issues. For instance, I recently reduced a jury award in favor of
one of the plaintiffs by $446,000.00, or a little less than 90%. This is often the
nature of the adversarial process: each party wins some and loses some.
Along the road, I have also admonished the City’s attorneys to
conduct themselves professionally and in accordance with my expectations.
Shortly after I began receiving strip search cases, I made clear that I intended
to resolve the cases expeditiously, noting:
[T]he City is going to be pretty busy defending them.…And
you may have to get outside counsel; but these cases are going
to move in this branch of the court, as all civil cases are. You
know, [R]ule [O]ne of the Federal Rules of Civil Procedure was
put there long before we had the Civil Justice Reform Act of
1990; and that rule is the touchstone of many of us in terms of
ensuring that the orderly administration of justice go forward
and these cases not languish.
Unlike fine wine, they do not get better with age. And whether
it’s the Milwaukee Police Department or the Wisconsin
Department of Corrections, very sadly we have a cornucopia
of litigation involving prisoner rights and police officers who
apparently stray from that which we expect from the law
enforcement community. And the sooner these cases are
addressed in open court, the sooner we will have a law
enforcement community that can be proud of their work and
the community proud to have them working. But,
unfortunately, we do not see that today particularly in light of
these cases.
1

In each of these cases, the City provides representation to all of th e
defendants. For the sake of clarity, I will refer to all of the defendants, collectively,
as “the City.”

Page 2 of 28

So, Ms. Lappen, I would suggest that you go back to Mr.
Langley [the City Attorney]…and have him assign appropriate
resources because we’re going to bring these cases to a
conclusion whether in July or September.
(Case No. 13-CV-1114, Docket #20 at 4:5–5:4). In each of the respective trial
scheduling orders in these cases, I stated that, “while every litigant is entitled
to their day in court, they are not entitled to intrude upon someone else’s day
in court.” (See, e.g., Case No. 13-CV-769, Docket #31 at 7; Case No. 13-CV1114, Docket #17 at 7; Case No. 13-CV-1224, Docket #25 at 7). Consistent with
these admonitions, I fully expected the City Attorney’s office to move the
cases along expeditiously. I also expect every lawyer appearing before me,
as an officer of the court, to adequately prepare for trial, to work
cooperatively with opposing counsel, and to avoid submitting poorlysupported legal arguments. To be sure, adversaries and litigants remain free
to carry on as they would please in protracting their dispute(s). However,
the wise exercise of judicial stewardship of limited taxpayer resources will
not do service in providing a forum or safe harbor to do so.
Unfortunately, representatives of the Milwaukee City Attorney’s office
have occasionally failed to meet my expectations. Despite an Assistant City
Attorney having agreed “wholeheartedly on getting these [cases] resolved
as quickly as possible” (Id. at 5:5–8), the City has often found it difficult to
cooperate with the plaintiffs, resulting in significant wasted time and
resources. Thus, on several occasions, I let the Assistant City Attorneys know
that they were not meeting my expectations. But, throughout the course of
this litigation, I have always approached the parties’ positions evenhandedly,
providing detailed legal analysis whenever I have resolved disputed matters
before me.

Page 3 of 28

Of course, what I know to be true is ultimately irrelevant to resolution
of the disqualification motions at hand, as I must employ an objective
standard to resolve them. I relay my perspective on this only to make clear
that, as I do in every case, I have approached each case fairly. Suffice it to say
that I was more than surprised—indeed, taken aback—by the City’s motions.
To be sure, in what will soon become 28 years as an Article III district judge,
I will have been assigned well over 7,000 civil cases, including more than 70
involving the City of Milwaukee and/or its agents and employees as named
parties. Yet, it appears that the motions before me today represent but only
the second instance of a kerfuffle in pending civil litigation in which I have
been asked to step aside. The first dates all the way back to May of 1988 in
Bassler v. Eisenberg, Case No. 87-CV-1345. More on Bassler later.
In addressing each of the pending motions, I will first provide a bit of
background about the separate cases and the City’s motions. I will then
discuss the legal standard governing disqualification requests. Finally, I will
apply that standard to the City’s pending motions. As appears from the
analysis of both the relevant facts and the applicable law which follows, my
fairness and impartiality cannot reasonably be questioned. Thus, I am
obliged to deny the City’s motions that I be disqualified.
1.

BACKGROUND
1.1

Procedural Posture of the Cases

Each of the plaintiffs in the above-captioned cases—Leo Hardy,
Chavies Hoskin, Edward Wright, and Jermain Caine—alleged that they had
been strip searched by police officers employed by the Milwaukee Police
Department (“MPD”). The cases were assigned to me, though each is at a
different stage of proceedings.

Page 4 of 28

The newest case—Caine v. Milwaukee, Case No. 14-CV-1548—is
scheduled for a trial to begin on January 11, 2016.2 On March 20, 2015, I held
a scheduling conference in the case, at which I made a comment that forms
a portion of the basis for the City’s disqualification request. There are no
dispositive motions outstanding in Caine.
Wright v. Vagnini, Case No. 14-CV-1224, is in a posture similar to
Caine. Wright is set for trial to begin on October 19, 2015, and there are no
dispositive motions outstanding.
Hoskin v. Cit y of Milwaukee, Case No. 13-CV-920, was originally
assigned to me, and I denied the City’s motion for judgment on the
pleadings. I then declined to adjourn the July 14, 2014 trial date in the case,
after which the parties agreed to consent to proceed before Magistrate Judge
William Callahan. Magistrate Callahan adjourned the trial date and presided
over the case until he relinquished it in preparation for retirement. At that
juncture, with the City’s motion for summary judgment pending, Mr. Hoskin
refused to proceed before Magistrate Judge William Duffin. As a result, the
case was returned to me.
The oldest case, Hardy v. City of Milwaukee, Case No. 13-CV-769, was
tried to a jury. On August 7, 2014, the jury returned a verdict, finding that
Mr. Hardy had been illegally stopped and searched but not illegally stripsearched. The jury awarded Mr. Hardy a total of $506,000.00, composed of
$6,000.00 in compensatory damages and $500,000.00 in punitive damages.
The City then filed two post-trial motions seeking to overturn the jury’s
verdict. As I have already noted, I granted one of those motions in part,
significantly reducing the jury’s punitive damages award. The City points to
2

It may be very confusing to cite to the docket sh eets in each of the four
separate cases, so I will do so sparingly and only where absolutely necessary.

Page 5 of 28

two statements from my order granting that reduction as evidence in favor
of the current motions.
Finally, I received three other strip search cases that are no longer
pending before me (and so are not subject to the City’s disqualification
motions). Two of those cases are now closed: Venable v. City of Milwaukee,
Case No. 13-CV-1114, and Bohannon v. City of Milwaukee, Case No. 13-CV1224. In Venable, I denied the City’s motion for summary judgment. The City
appealed that decision, but reached a settlement with the plaintiff while the
appeal was pending. In Bohannon, I also denied the City’s motion for
summary judgment (which was identical in many ways to the City’s motion
for summary judgment in Venable). The City did not appeal my order in
Bohannon. Instead, the parties prepared to go to trial. I held a final pretrial
conference, at which I made statements critical of the City’s approach to
handling the case. Those statements also form a portion of the basis for the
City’s pending motions. In the end, Bohannon settled prior to trial and was
dismissed. In the third case, Freeman v. City of Milwaukee, Case No. 13-CV918, I denied motions from the City for a more definite statement and for
judgment on the pleadings. The parties thereafter consented to proceed
before Magistrate Judge Nancy Joseph; that case remains pending.
1.2

The City’s Recusal Motions

The City filed four separate motions to disqualify me,3 one each in
Caine, Wright , Hoskin, and Hardy. In support, the City cites to four separate
statements that I have made: two from my post-trial order in Hardy, one from
the final pretrial conference in Bohannon, and one from the scheduling
conference in Caine. The City argues that, in light of those statements, a
3

Each of the motions is practically identical, so I will address them together,
applying the same law.

Page 6 of 28

reasonable observer could question my impartiality. Thus, according to the
City, I am required to recuse myself under 28 U.S.C. § 455(a).
In the balance of today’s order, I will refer to the statements in
question as the Flynn statements, the Vagnini statements, the Bohannon
statements, and the Caine statements, respectively.
The Flynn Statements. I made statements concerning MPD Chief
Edward Flynn on page 49 and in footnote 19 of my post-trial order in Hardy.
(Case No. 13-CV-769, Docket #251 at 49 n.19). In that portion of my post-trial
order, I was addressing whether to reduce the jury’s punitive damages
award. In doing so, I applied the five factor test described by the Supreme
Court in State Farm to determine whether the defendant officers’ actions in
the Hardy case were reprehensible. (Case No. 13-CV-769, Docket #251 at 49
n.19) (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419
(2003)). The Flynn statements related to the fourth factor from the State Farm
test. (Id.) I held that: “The fourth factor does not weigh heavily in either
direction. There was no evidence produced at trial to show that the
defendant officers had engaged in repeated acts of this sort.” (Id. at 49). Then,
in a footnote, I stated:
However, with that said, it is apparent that MPD has opted to
continue the sort of illegal stops that Mr. Hardy was subject to.
MPD Chief Edward Flynn has made clear that one of his
prerogatives is encouraging large amounts of pedestrian stops,
regardless of the reasons. In criticizing Floyd v. City of New
York, the Southern District of New York case finding the New
York Police Department’s stop-and-frisk tactics illegal, Chief
Flynn stated, “That’s what worries us about what’s happening
in New York. It would be a shame if some people decided to
put us back in our cars just answering calls and ceding the
streets to thugs.” Heather MacDonald, “How To Increase the
Crime Rate Nationwide,” The Wall Street Journal (June 11, 2013)
(quoting previous Flynn statements to L.A. Times).
Page 7 of 28

(Case No. 13-CV-769, Docket #251 at 49 n.19).
The Vagnini Statements. I made statements about former MPD Officer
Michael Vagnini on page 13 and in footnote 8 of my post-trial order in Hardy.
(Id. at 13 n.8). There, I provided background details regarding an evidentiary
challenge lodged by the City. (Id.) In post-trial motions, the City argued that
I erred in allowing one of the defendant officers to testify regarding prior
statements he made in an investigation of Michael Vagnini. (Id.) In
addressing that argument, I provided some background about the prior
statements: “At trial, the Court allowed Mr. Hardy’s attorneys to question
Officer Gasser regarding a prior strip search. Officer Michael Vagnini
conducted that prior search with Officer Gasser present.” (Id. at 13) (internal
citations and footnote omitted). Where I mentioned Officer Vagnini, I
provided some background information in footnote 8: “Officer Vagnini was
MPD’s primary strip-search offender. He is now serving a prison sentence
as a result of his criminal actions in improperly searching individuals. He is
also a defendant in many of the strip-search cases now pending in this
district, although he is not a defendant in this case.” (Id. at 13 n.8).
The Bohannon Statements. My statements in Bohannon come from the
final pretrial conference. (Case No. 13-CV-1224, Docket #142 at 12:17–14:19).
There, I criticized attorneys for both parties for failing to work together and
for filing an extremely large amount of motions in limine. (Id.) I also
commented upon the effects of the strip search lawsuits. (Id.) In full, I stated:

Page 8 of 28

Well, I’m here to try the case; but I can tell you as a judge after
27 years of experience, I would far, far enjoy being in a trial
where the lawyers are prepared and are as professional as they
can possibly be.
But when lawyers are in one another’s face, and they cannot
even agree on the time of day much less anything else, it’s an
exasperating experience. And we hear it from jurors, and we
hear it from court reporters and staff, you know, why do
lawyers have to behave this way. This is a profession. This is
not mud wrestling.
And so when I read that -- and I refer to them generically not
in a pejorative way -- really, the brickbats that are thrown in
these settlement reports, well, they never gave us the money,
and they didn’t call us back. Come on. This is 2014, not 1894,
you know.
This isn’t the world where you can just keep pushing the
button on the word process[o]r and bludgeon the court and
opposing counsel with a blizzard of paperwork.
You know, the last time I had a case that had so many motions
in limine was the case involving Quad Graphics, a verdict form
with over 200 questions, 60 some motions in limine. I mean, it
was an unfortunate unbelievable experience, and the jurors
come away from a case like that wondering, is this really the
way the legal profession is designed to run. And the answer is
clearly no.
But that’s what happens when communications break down
and when lawyers are unable, for whatever reason, to be
respectful to one another. You can respectfully disagree, but
you don’t have to do it in a manner that is all but an assault.
And there’s plenty of assault in this case in terms of the war of
words and the e-mails and the sniping that goes on. That’s not
the way lawyers ought to practice law.

Page 9 of 28

If the facts are on your side, you’re going to prevail; but,
unfortunately, in these cases from what the Court has seen
thus far, the City has got a very, very tall order to be an
effective defender of what occurred particularly when you see
what occurred in this and other cases if only what’s come
through the criminal justice system with the likes of Mr.
Vagnini and others. That’s not the way our system is designed.
And, eventually, it comes at a very, very high cost whether it’s
morale in the police department, whether it’s the citizens[’]
respect for the rule of law in the community, that there are
those in [the] City that want to defend this sort of conduct.
It’s plainly unconscionable. That’s the end of the discussion.
So it’s time to roll up the sleeves and get real serious about
[where] we are going with this because on a long-term basis
while Milwaukee is certainly no Ferguson, Missouri,…it’s
certainly becoming a bit of a tinder box, if you will, if you look
at the public outcry whether it’s why don’t we have more
cameras whether it’s on individual officers or in police cars;
and the same holds true in the jail. I mean, the technology,
unfortunately, has not caught up with reality.
(Id.) (emphasis supplied in City’s motions). In its motions, the City focuses
primarily on the three final paragraphs that I just quoted.
The Caine Statements. My statements in Caine come from a
scheduling hearing and reference the still-pending motion for summary
judgment in Hoskin. (Case No. 14-CV-1548, Docket #16 at 4:20–5:24). There,
I asked the City to ensure that its summary judgment motion in
Hoskin—which I had just received back on reassignment from Magistrate
Judge Callahan—did not raise frivolous arguments. (Id.) In full, I stated:
I’m glad that you’ve averted to that because the comments that
I want to impart this morning both in this case and now in
Hoskin – and I appreciate that Mr. Nichols is not yet involved
in the Hoskin case -- but with the level of litigation that is
swirling around the Milwaukee City Attorney's Office like bees
Page 10 of 28

around honey, I’m certain that Mr. Langley is going to have to
engage outside counsel because just yesterday we received
another strip search case that was filed.
And my point in all of this is for your benefit, Mr. Nichols. The
City filed a 50-page summary judgment motion in the Hoskin
case; and they have the benefit of Judge Stadtmueller’s view,
not only on the law, but how to best proceed.
And if the City defendants are going to replicate some of the
non-starter arguments that were raised in Hardy and Venable
and Bohannon, they are going to find themselves on the short
end of the stick with sanctions.
And so the first order of business in a scheduling order that
will issue in Hoskin is, before the plaintiffs respond to the
summary judgment motion that was filed by the City, I’m
going to redirect the City Attorney’s Office or their outside
counsel to review that submission against the backdrop of the
Court’s rulings in Hardy, in Venable, and Bohannon; and we will
graciously accept new arguments. But matters that have been
litigated and re-litigated and now to be re-litigated again
simply are not effective representation of the interests of one’s
client, and they will not be tolerated in this branch of the court.
And so, as they say, a word to the wise is more than sufficient.
(Id.) (emphasis supplied in City’s motions).
The City’s motions assert: (1) that the Flynn statements and Vagnini
statements derive from extrajudicial sources; and (2) that the Bohannon and
Caine statements would cause a reasonable person to question whether I
could be impartial in reaching legal determinations on the issues before me.
The plaintiffs in each case filed responses to the City’s motions, and
the City filed practically identical replies thereto.
2.

STANDARD OF REVIEW
28 U.S.C. § 455(a), pursuant to which the City has moved for

disqualification, provides that “[a]ny justice, judge, or magistrate judge of the
Page 11 of 28

United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” The Supreme Court
elaborated upon this standard in Liteky v. United States, 510 U.S. 540 (1994).
The Supreme Court noted that “judicial rulings alone almost never constitute
a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555 (citing
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)). Rather,
[i]n and of themselves (i.e., apart from surrounding comments
or accompanying opinion), they cannot possibly show reliance
upon an extrajudicial source; and can only in the rarest
circumstances evidence the degree of favoritism or antagonism
required (as discussed below) when no extrajudicial source is
involved. Almost invariably, they are proper grounds for
appeal, not for recusal.
Liteky, 510 U.S. at 555. The Supreme Court also made clear that,
opinions 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.
Id. (emphasis in original). The Supreme Court went on to point to an example
of a high degree of favoritism: a 1921 case against two German-American
defendants in which the presiding judge stated that “‘[o]ne must have a very
judicial mind, indeed, not [to be] prejudiced against the German Americans’
because their ‘hearts are reeking with disloyalty.’” Id. (quoting Berger v.
United States, 255 U.S. 22, 28 (1921)).

Page 12 of 28

The Supreme Court, in Liteky, provided guidance about the meaning
and importance of “extrajudicial sources.”
As we have described [the extrajudicial source doctrine],
however, there is not much doctrine to the doctrine. The fact
that an opinion held by a judge derives from a source outside
judicial proceedings is not a necessary condition for “bias or
prejudice” recusal, since predispositions developed during the
course of a trial will sometimes (albeit rarely) suffice. Nor is it
a sufficient condition for “bias or prejudice” recusal, since
some opinions acquired outside the conduct of judicial
proceedings (for example, the judge’s view of the law acquired
in scholarly reading) will not suffice. Since neither the presence
of an extrajudicial source necessarily establishes bias, nor the
absence of an extrajudicial source necessarily precludes bias,
it would be better to speak of the presence of a significant (and
often determinative) “extrajudicial source” factor, than of an
“extrajudicial source” doctrine, in recusal jurisprudence.
Liteky, 510 U.S. at 554–55. The Sixth Circuit summarized this point well:
“[A]n extrajudicial source for a judge’s opinion about a case or a party is
neither necessary nor sufficient to require recusal. Instead, the presence of an
extrajudicial source is merely a thumb on the scale in favor of finding either
an appearance of partiality under § 455(a)….” Bell v. Johnson, 404 F.3d 997,
1004 (6th Cir. 2005). I also note that the Supreme Court has described the
concept of an extrajudicial source as being rooted in “the pejorative
connotation of the words ‘bias or prejudice’”:
It seems to us that the origin of the “extrajudicial source”
doctrine, and the key to understanding its flexible scope (or the
so-called “exceptions” to it), is simply the pejorative
connotation of the words “bias or prejudice.” Not all
unfavorable disposition towards an individual (or his case) is
properly described by those terms.…The words connote a
favorable or unfavorable disposition or opinion that is
somehow wrongful or inappropriate, either because it is
undeserved, or because it rests upon knowledge that the
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subject ought not to possess…or because it is excessive in
degree.
Liteky, 510 U.S. at 550 (emphasis in original).
The Supreme Court also noted that it would be rare to find bias on the
basis of a judge’s attempts at courtroom administration, even if those efforts
are harsh. “[E]xpressions of impatience, dissatisfaction, annoyance, and even
anger…are within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display.” Id. at 555–56.
Such “ordinary efforts at courtroom administration—even a stern and shorttempered judge’s ordinary efforts at courtroom administration—remain
immune.” Id. at 556.
The Seventh Circuit has also offered additional guidance in
interpreting Liteky. The Seventh Circuit has clarified that the relevant
question for purposes of 28 U.S.C. § 455(a) disqualification is whether “the
judge’s impartiality might reasonably be questioned by a ‘well-informed,
thoughtful observer rather than to a hypersensitive or unduly suspicious
person.’” O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 988 (7th Cir. 2001)
(quoting Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996); citing In re Mason,
916 F.2d 384, 386 (7th Cir. 1990)); accord Microsoft Corp. v. United States, 530
U.S. 1301, 1302 (2000) (Rehnquist, C.J., in chambers) (§ 455(a) “inquiry is an
objective one, made from the perspective of a reasonable observer who is
informed of all the surrounding facts and circumstances”). “That an
unreasonable person, focusing on only one aspect of the story, might
perceive a risk of bias is irrelevant.…[A] reasonable person is able to
appreciate the significance of the facts in light of relevant legal standards and
judicial practice and can discern whether any appearance of impropriety is
merely an illusion.” In re Sherwin-Williams Co., 607 F.3d 474, 477-78 (7th Cir.
Page 14 of 28

2010) (citing Cheney v. United St at es Dist. Court, 541 U.S. 913, 924 (2004)
(Scalia, J., in chambers); United States v. Bonds, 18 F.3d 1327, 1331 (6th Cir.
1994); In re Mason, 916 F.2d at 387). This standard is entirely objective. Listecki
v. Official Comm. of Unsecured Creditors, No. 13-2881, ---- F.3d ----, 2015 WL
1010089, at *17 (7th Cir. Mar. 9, 2015) (citing In re Hatcher, 150 F.3d 631, 637
(7th Cir. 1998); Hook, 89 F.3d at 354). Moreover, unless the risk of an
appearance of partiality

is “‘substantially

out of the

ordinary,’”

disqualification is not required. Hook, 89 F.3d at 354 (quoting In re Mason, 916
F.2d at 385–86). There is a “general presumption…that judges rise above any
potential biasing influence,” Tezak v. United States, 256 F.3d 702, 718 (7th Cir.
2001) (citing Withrow v. Larkin, 421 U.S. 35, 47 (1975)), as judges are
“‘obligated not to recuse [themselves] without reason,’” New York City Dev.
Corp. v. Hart, 796 F.2d 976, 981 (7th Cir. 1986) (quoting Suson v. Zenith Radio
Corp., 763 F.2d 304, 308–09 n.2 (7th Cir. 1985)).
3.

ANALYSIS
With those general standards in mind, I now turn to analyzing the

City’s specific arguments in favor of disqualification.
3.1

The Flynn Statements

The parties dispute whether the Flynn statements constitute reliance
on an extrajudicial source. Because the City is questioning my appearance of
impartiality, which I take very seriously, I want to give the City every benefit
of the doubt. I, therefore, assume that the Flynn statements rely upon an
extrajudicial source. See Liteky, 510 U.S. at 554–55.
But that, alone, does not require disqualification under § 455(a). It is
merely a factor to consider in my analysis, rather than an independently
sufficient cause for recusal. See, e.g., Liteky, 510 U.S. at 554–55; Bell, 404 F.3d
at 1004. What I must actually look for is whether there is an appearance of “a
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favorable or unfavorable disposition or opinion that is somehow wrongful or
inappropriate, either because it is undeserved, or because it rests upon
knowledge that [I] ought not to possess…or because it is excessive in
degree.” Liteky, 510 U.S. at 550 (emphasis in original).
I do not believe any of that is the case here. In making the Flynn
statements, I mentioned a news article. I attempt to stay informed by reading
the news from various sources, which clearly is not inappropriate. See, e.g.,
Dean v. Colvin, 585 F. App’x 904, 904-05 (7th Cir. 2014) (in context of ALJ’s
social security ruling, noting that “Judges do not violate the Constitution by
consulting their own funds of knowledge about the world, or by augmenting
that knowledge. This court does so regularly. No judge is required to
approach a case in complete ignorance. An open mind is required; an empty
mind is not.”) (citing Liteky, 510 U.S. 540); In re Larson, 43 F.3d 410, 411-12 (8th
Cir. 1994) (disqualification not required where district judge preemptively
warned parties that he would reject a plea agreement after reading in a
newspaper that parties planned to enter a plea agreement).
The Flynn statements also do not evidence any sort of wrongful,
excessive, or preordained view of the facts, law, or parties4 in the cases before
me, especially in light of the Seventh Circuit’s opinion in Sherwin-Williams.
In that case, the district judge had previously written an article approving of

4

It is not entirely clear whether the City believes that I appear biased against
Flynn or against all of the City defendants on the claims in question. It seems most
likely to be the latter, as the City mentioned in its opening and reply briefs that it
believes the Court has pre-judged Monell-related issues in these cases. (See Opening
Br. ¶ 4; Reply at 4–5). To the extent the City is arguing that I appear biased against
Flynn, individually, they have not provided any briefing to support that contention.
In any event, as I make clear in my analysis, the entire context of this case indicates
that I have and will continue to resolve the issues fairly, regardless of the parties or
issues before me.

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a Wisconsin Supreme Court case. Sherwin-Williams, 607 F.3d at 477-78. A
party before the district judge, hoping to attack the applicability of that very
case, moved for disqualification. Id. The district judge refused and the
Seventh Circuit affirmed. Id. The Seventh Circuit held that the district judge’s
previous expression of his views—based, no doubt, on a variety of
extrajudicial sources—was “irrelevant,” because the district judge was
constrained to apply the law to the facts at hand. Id. at 478. I face the same
situation: regardless of my rulings and statements, I remain obliged to apply
the law to the facts at hand. Without a doubt, I previously ruled that the
search of Mr. Hardy was unconstitutional, but that previous ruling cannot
form the basis for my disqualification. See, e.g., Liteky, 510 U.S. at 555; Frey v.
E.P.A., 751 F.3d 461, 472 (7th Cir. 2014), cert. denied, 135 S. Ct. 494 (2014)
(disqualification not required where judge presided over prior proceedings
and rendered adverse decisions). My ruling was also the product of ample
legal analysis. Reading the Flynn statements as strongly as possible, I implied
only that I would find illegal the same “sort of…stop[] that Mr. Hardy was
subject to,” in light of my analysis. But that does not, in any way, mean that
I have predetermined that all of the stops in these cases are illegal. When
presented with the differing facts of each case, I must fairly apply the law,
employing the same sort of rigorous legal analysis I applied in the post-trial
order in Hardy.
Finally, it is extremely important to note the context of the Flynn
statements. They formed a brief parenthetical in my Hardy post-trial order;
and that order could appropriately be described as a significant victory for
the City. With it, I reduced the jury verdict in favor of Mr. Hardy by
$446,000.00. (Case No. 13-CV-769, Docket #251 at 55). That is close to a 90%
reduction. Additionally, and perhaps more importantly, the statements
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followed my extremely detailed analysis of the legality of the stop of Mr.
Hardy. (Id. at 26–45). My discussion on that topic ran from the middle of
page 26 to the top of page 45 of the order, analyzing and citing cases from the
Seventh Circuit, Wisconsin, and multiple other circuits. (Id.) Any reasonable
person with full knowledge of the facts and the relevant legal standards, see,
e.g., Sherwin-Williams, 607 F.3d at 477–78 (citations omitted), would believe
me to be impartial. The Flynn statement is but an extremely small part (and,
if read in context, one upon which I placed no judicial reliance) in the scheme
of a much larger, extremely detailed order that was of huge benefit to the
City. Seeing as I made the Flynn statements in the context of an order that
was of great benefit to the City, clearly evidencing my ability to make a fair
judgment, I find that a reasonable, well-informed observer could not
question my impartiality.
For all of these reasons, I reject the City’s argument that the Flynn
statements require my disqualification.
3.2

Vagnini Statements

It is extremely difficult to make an effective argument that the Vagnini
statements rely on an extrajudicial source. Throughout the Hardy
proceedings, I was presented with information about Officer Vagnini’s prior
searches and conviction. (See, e.g., Case No. 13-CV-769, Docket #158, #163
(both addressing Vagnini’s prior searches, although the information was also
presented in numerous other documents throughout the course of the case)).
There is also no denying that Officer Vagnini has been named as a defendant
in a significant number of the strip search cases in this district. All of this
information comes directly from my interaction with this series of cases, as
opposed to some other, extrajudicial source. Under Liteky, the Vagnini
statements are clearly appropriate as the information on which they rely
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constitute “facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings.” 510 U.S. at 555.
However, even if the Vagnini statements did rely on some extrajudicial
source, they would not require my disqualification. My statement was
entirely factual and I provided it only to orient the reader as to Officer
Vagnini’s role in the evidentiary dispute. In any future case involving Officer
Vagnini, there will undoubtedly be evidentiary disputes regarding the
admissibility of his conviction, requiring me to review and pass upon the
importance of the information again.5 There is no question that I can do so
objectively, seeing as I have already displayed my ability to closely consider
the import of an individual’s arrest; in the Hardy case, I acknowledged Mr.
Hardy’s plea yet still treated him fairly. (See, e.g., Case No. 13-CV-769, Docket
#93 at 16–21 (addressing import of Mr. Hardy’s plea)). Likewise, the mere
fact that I acknowledged Officer Vagnini’s plea does not in any way
telegraph some sort of bias against him.
Finally, I again note the important context of the Vagnini statements:
an exhaustive, 56-page order that granted the City a monumental reduction
of the jury award in Hardy. Given that the Vagnini statements were a factual
parenthetical to a decision that was otherwise extremely favorable to the
City, I do not believe that there is any chance that an informed observer
could reasonably question my impartiality. Again, I struggle to see how I

5

Again, I note that it is not clear whether the City is arguing that I appear
biased against Vagnini, personally, or against him or the City defendants on specific
issues. In its opening brief, the City asserts that “the Court has reached substantive
conclusions regarding” Vagnini’s conduct, but did not provide further elaboration.
(Opening Br. ¶ 7). The City did not address the issue at all in its reply brief. In either
event, as I discuss further above, I remain steadfast in believing that I could not
appear partial regarding parties or claims.

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could be viewed as unable to “make [a] fair judgment,” Liteky, 510 U.S. at
555, as a result of statements I made while rendering a fair judgment in favor
of the City.
For all of these reasons, I reject the City’s argument that
disqualification is required by the Vagnini statements.
3.3

The Bohannon Statements

The City argues that the Bohannon statements, specifically my use of
the word “unconscionable,” might create the appearance that I am not
impartial, because there were “no findings to support such an assertion,” and
would cause a reasonable person to question my impartiality in resolving the
legal issues before me. (Opening Br. ¶ 11). In its reply, the City argues that
my statements must have been “based on a conclusion that Michael Vagnini
had not only been guilty in the matters for which he was serving a prison
sentence, but that he was guilty of illegally searching Mr. Bohannon before
that matter went to trial.” (Reply at 5). I disagree with both of the City’s
assertions.
To begin, it appears that the City is misreading my statements. The
City seems to believe that I was accusing its defense of the strip search cases
as unconscionable, and emphasizes the following statement I made: “there
are those in [the] City that want to defend this sort of conduct. It’s plainly
unconscionable. That’s the end of the discussion.” If an observer were to
have stepped into court and remained only for the duration of that statement,
that observer might believe that I was saying that the defense of any strip
search suit would be unconscionable. But such a blindered observer is not the
object of this inquiry. Instead, as I have already noted, I must ask whether a
fully-informed observer might perceive me to lack impartiality. See, e.g.,
O'Regan, 246 F.3d at 988 (quoting Hook, 89 F.3d at 354).
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An informed observer would not make such a mistake. The full
context reveals only that I was urging the City to “get serious” about its
approach to these and related cases as well as the issues underlying the cases.
I noted that MPD, its leadership, and its officers were the subject of many
lawsuits; that the City appeared to face an uphill battle in defending the
actions; and that the fact that some “in [the] City… want to defend this sort
of conduct” results in diminished morale in the MPD and lack of citizen
respect for the rule of law. (Case No. 13-CV-1224, Docket #142 at 13:24–14:19).
My reference to the individuals “in [the] City” did not refer to the lawyers in
the case, but instead to City leadership who has elected to oppose the stripsearch lawsuits without any indication of efforts to combat the systemic
problems that gave rise to the suits in the first place. This is clearly supported
by my statements that followed, in which I noted that there has been public
outcry as to why there are not more cameras on individual officers or in
police cars. Perhaps I disapproved of the City’s approach to dealing with
these cases and their fallout, but an observer would not reasonably perceive
that I lack impartiality in the cases. No matter how critical I may be of the
approach, I continuously made clear that each case deserved to be considered
on the merits and that I would resolve them as such. Most importantly, I
made very clear that “[i]f the facts are on your side, you’re going to prevail.”
(Case No. 13-CV-1224, Docket #142 at 14:24–25). I do not know how I could
have made it any clearer that I would view the facts of each case fairly.
Additionally, the Bohannon statements that the City relies upon came
at the end of a statement I was making to both parties, urging them to work
together. (Id. at 12:17–14:19). With my statements, I noted that the parties had
not been cooperating with one another, and were instead filing an
exceptional number of motions. (Id. at 12:17–13:23). I held the Bohannon
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hearing shortly after I concluded trial in Hardy, which was a very difficult
trial to administer because the parties’ attorneys struggled to cooperate. With
my Bohannon statements, I hoped to achieve greater cooperation. And the
language I used was appropriately stern. But, generally, that does not provide
a basis for disqualification. As the Supreme Court has made clear,
“expressions of impatience, dissatisfaction, annoyance, and even anger…are
within the bounds of what imperfect men and women, even after having
been confirmed as federal judges, sometimes display.” Liteky, 510 U.S. at
555–56. Such “ordinary efforts at courtroom administration—even a stern
and short-tempered judge’s ordinary efforts at courtroom administration
remain immune.” Id. at 556.
Finally, I also make note of the important context of the Bohannon
statements. If an observer had been present for the full hearing, he or she
would have seen me: (1) reject the plaintiff’s request to introduce an illegal
search claim (Case No. 13-CV-1224, Docket #142 at 8:9–22); and (2) threaten
pretrial dismissal of the plaintiff’s Monell claim if the plaintiff could not
establish evidence of custom, policy or practice (Id. at 6:13–25). Both of those
actions were favorable to the City. And it is on those two issues—illegal
searches and potential Monell claims—that the City seems to argue I may
appear biased. If I were biased on those claims, why would I dismiss one and
threaten to dismiss the other? My actions are totally inconsistent with any
bias.
In light of the foregoing, I do not believe that any observer with
adequate view of the facts could reasonably view me as lacking impartiality.
I, therefore, reject the City’s argument that disqualification is required by the
Bohannon statements.
3.4

The Caine Statements
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Last, the City challenges the Caine statements as inappropriate because
I threatened sanctions in the event that the City’s attorneys “replicate[d]
some of the non-starter arguments that were raised in Hardy and Venable and
Bohannon.” (Case No. 14-CV-1224, Docket #16 at 5:9–12). The City asserts that
these statements would lead a reasonable observer to conclude that I have
“pre-ruled on summary judgment” and will, therefore, reject any of the
City’s arguments out of hand. (Opening Br. ¶ 6).
The City’s conclusion is a misreading in light of the full context of the
strip search cases. I have now handled three strip search cases that have
reached the summary judgment stage—Hardy, Venable, and Bohannon. In
each, the City asserted various grounds for summary judgment that I was
obliged to reject because of factual disputes. (See, e.g., Case No. 13-CV-769,
Docket #93 at 14–15, 23–24; Case No. 13-CV-1114, Docket #89 at 6–8; Case No.
13-CV-1224, Docket #79 at 6–7). To be sure, these did not involve close calls.
Also, in Hardy, the City asserted that the plaintiff could not sustain his false
arrest claim as a result of his guilty plea. (Case No. 13-CV-769, Docket #93 at
18–22). I considered this, but denied it without prejudice because the City
had neither analyzed the issue with any depth nor supported the argument
with the necessary facts. (Id.) I, nonetheless, offered the City the opportunity
to renew the issue if they wished to do so. (Id.) The City did not do so.
I raise my prior summary judgment rulings to provide context. Before
the Caine scheduling conference, I reviewed the motion for summary
judgment filed by the City in Hoskin, which I had recently received by way
of reassignment from Magistrate Callahan. In doing so, I noted that the
motion rested upon many of the grounds I had previously rejected in Hardy,
Venable, and Bohannon. Thus, I concluded that I should urge the City to
seriously reconsider its Hoskin arguments to ensure that they were not
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frivolous like many of the arguments made in Hardy, Venable, and Bohannon.
I said as much in the Caine scheduling conference, but also informed the City
that I would be issuing a scheduling order requiring that the City review its
Hoskin submission. (Case No. 14-CV-1224, Docket #16 at 5:13–24). The City
did not wait for that order before filing the present motions to disqualify.
Had the City waited, it would have received a scheduling order advising it
to review its Hoskin submission in light of the following findings:
(1)

The defendants’ argument that personal-capacity claims
against Chief Flynn should be dismissed (Docket #68 at 3) is
similar to other arguments that the defendants have raised,
resulting in the plaintiffs agreeing to dismiss claims. The same
can be said of the defendants’ argument that the municipal and
official capacity claims are redundant. (Docket #68 at 48–49).
Rather than raise these arguments in a summary judgment
brief, the defendants should first seek to determine whether
the plaintiff will agree to dismiss the related claims. If so, then
the parties may file a stipulation of dismissal of the claims. If
not, then the defendants may properly assert the arguments on
summary judgment.

(2)

In its summary judgment order in Hardy, Case No. 13-CV-769,
Docket #93 at 16–21, the Court considered an argument similar
to the Rooker-Feldman argument that the defendants now raise
(Docket #68 at 3–7). The defendants should read and re-read
the Court’s prior order in Hardy to determine whether it is
worthwhile to assert this Rooker-Feldman argument now.

(3)

Given anticipated disputes of material fact—just as have been
present in all of the other strip search related cases before the
Court—it is likely very difficult for the defendants to prevail
on their arguments that: (a) the stop and search of the plaintiff
were constitutional (Docket #68 at 7–17); (b) certain officers are
entitled to qualified immunity (Docket #68 at 17–23); (c) the
failure to intervene claims must be dismissed (Docket #68 at
23–25); (d) the Monell claim must be dismissed (Docket #68 at
25–45); and (e) the supervisory liability claim must be
dismissed (Docket #68 at 45–48). All of those determinations
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are extremely fact-bound. Meanwhile, there has been little
agreement about the relevant facts in any of these cases. If the
pattern continues, here, the defendants should strongly
consider whether it is worthwhile to assert these arguments.
I have taken that language verbatim from the scheduling order that I planned
to issue before receiving the City’s motions. Had the City waited, I could
have issued that order to clarify my statements.
In light of this full context, there is nothing inappropriate about the
Caine statements. I am certainly permitted to draw inferences from my prior
experience, both with this line of cases and with the City’s attorneys. See, e.g.,
Frey, 751 F.3d at 472 (disqualification not required where judge presided over
prior proceedings and rendered adverse decisions). In light of the full
context, it is abundantly clear that the Caine statements were both necessary
and well placed to achieve effective case management, entirely permissible
under Liteky, 510 U.S. at 555–56. Every summary judgment brief that comes
before me puts the taxpayers on the hook at multiple levels: first, they must
pay for the City to research and write the brief; second, they must pay for me
to research and render a decision; and, third, if the non-movant prevails, they
may also have to pay the attorneys’ fees associated with their submissions to
the Court. This is an expensive (not to mention time-consuming) proposition.
With a bit of common sense and open communication with opposing
counsel, the City could avoid rehashing arguments that are likely losers but
nonetheless result in a significant outlay of taxpayer dollars. There is an old
aphorism: “Those who cannot remember the past are condemned to repeat
it.” With my comments, I fully expected that the City would consider my

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prior orders with the thought of saving the taxpayers a potentially-significant
amount of money.6
In the end, with adequate understanding of my experience with this
line of cases, any observer would fully appreciate and understand that the
Caine statements were apropos to my role in effectively managing my docket.
Liteky, 510 U.S. at 555–56. I, therefore, reject the City’s argument that
disqualification is required by the Caine statements.
3.5

Cumulative Effect

I have rejected the notion that any of these statements could be read,
individually, as indicating my partiality. Even if an observer were to read
them collectively, that observer could not reasonably believe that I am partial
in light of the full record.
I sincerely believe that I have given the reader of this order a
thoughtful perspective. Throughout the pendency of these cases, I have
routinely resolved issues in favor of the City, even going so far as to:
(1) dismiss or threaten to dismiss the exact types of claims upon which the
City now argues I appear biased (Case No. 13-CV-1224, Docket #142 at
6:13–25, 8:9–22) (in Bohannon, dismissing illegal stop claim and threatening
to dismiss Monell claim); and (2) to reduce a jury award against the City by
$446,000.00, or 90%. Thus, it is difficult for me to believe that my remarks
“reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible,” Liteky, 510 U.S. at 555, when I made the remarks at
issue most often in the context of rendering fair judgments in favor of the

6

I also note that someone within the ranks of the City’s defense team appears
to have taken my message to heart. On April 3, 2015, the City’s outside counsel
(who, I note parenthetically, appears not to have played a role in filing the
disqualification motions) filed a stipulation to withdraw the motion for summary
judgment in Hoskin. (Case No. 13-CV-920, Docket #84).

Page 26 of 28

City. I have acted fairly and impartially throughout the course of these cases
and none of my statements, together or separately, indicate in any way that
I will not continue to do so. In this full context, I do not believe that any
observer could reasonably view me as partial.
4.

CONCLUSION
With the benefit of the foregoing analysis, I must now deny each of the

City’s motions requesting that I disqualify myself in these cases. As
earlier noted, many years ago, in another case in which I was asked to
disqualify myself, Bassler, I remarked that an affidavit supporting the
motion that I be disqualified was “[no]thing more than the product of a
badly bruised ego resulting in a poorly disguised collateral attack on the
wisdom of this court’s prior rulings.” (Bassler v. Eisenberg, No. 87-CV-1345,
Docket #63 at 6); Ken Wysocky, Judge is in Middle of ‘Spat’ Between
Lawyer, Ex-Workers, M I LWAUKEE S ENTINEL, May 16, 1988, at A5, available at
https://news.google.com/newspapers?nid=1368&dat=19880516&id=XHxQ
AAAAIBAJ&sjid=8RIEAAAAIBAJ&pg=2487,3491743&hl=en

(last visited

April 7, 2015). I believe that the same statement is equally apropos of the
City’s motion, here, particularly as to the subject of bruised egos. The City
has selectively quoted from the record—much of which I generated in
reaching conclusions favorable to the City—to argue that I appear biased. I
take my obligation to be fair and impartial very seriously and, throughout
the course of this series of cases, have acted entirely consistent with that
obligation. If some in the City—whether in the City Attorney’s Office, the
MPD, or the City’s broader leadership—disagree, I am left to view their
opinion–whether collectively or individually–as the “product of a badly
bruised ego,” rather than a well-founded belief that I have done anything to

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indicate partiality when viewed against the backdrop of the entire record in
these cases.
Accordingly,
IT IS ORDERED that the City’s motions to disqualify me (Case No.
13-CV-769, Docket #253; Case No. 13-CV-920, Docket #80; Case No. 14-CV1224, Docket #14; Case No. 14-CV-1548, Docket #17) be and the same are
hereby DENIED.
Dated at Milwaukee, Wisconsin, this 10th day of April, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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