Opinion
Case No. 96-12891-SSM
November 20, 1996
Robert K. Coulter, Esquire, Alexandria, VA, of Counsel for the Internal Revenue Service
MEMORANDUM OPINION
Before the court is an "Affidavit of Bias and Prejudice Concerning Bankruptcy Judge" filed by the debtor under 28 U.S.C. § 144 on November 12, 1996, seeking the disqualification of the presiding judge in this case. At the time the affidavit was filed, the court had under submission the debtor's objection to a proof of claim filed by the Internal Revenue Service (IRS). For the reasons set forth in this opinion, the court determines that the affidavit is neither timely nor sufficient, and that recusal is not otherwise required. Accordingly, the court will deny the debtor's motion to disqualify the undersigned judge.
A separate memorandum opinion and order has been issued overruling the objection to the IRS claim.
Procedural Background
The debtor, Karriem El-Amin Shabazz, filed a pro se voluntary chapter 13 petition — his fourth in the space of approximately two and a half years — in this court on May 30, 1996. On June 14, 1994, he filed a chapter 13 plan, the sole purpose of which was to deal with, and largely discharge, tax claims of the United States. The United States, on behalf of the IRS, objected to confirmation. By memorandum opinion and order dated September 16, 1996, the court denied confirmation, in part, although not solely, for failure to pay priority tax claims in full. The debtor then filed an objection on September 17, 1996, to the IRS proof of claim. An initial hearing on the objection was held on October 8, 1996. At that hearing, the court agreed with the debtor that the proof of claim had not been properly signed but permitted the IRS to file an amended proof of claim to cure the formal defect. The IRS did so, and a further hearing was held on November 5, 1996. At that hearing, evidence was taken and argument heard concerning the remaining grounds of objection. The court then took the matter under advisement, in large measure because the IRS cited at the hearing a recent court decision that neither the court nor the debtor had had an opportunity to review. In taking the matter under advisement, the court gave the debtor seven days (until November 12, 1996) to submit any argument or authorities in rebuttal to the case cited by the IRS.
On November 12, 1996, the debtor filed both a "Response" to the case cited by the IRS, as well as the affidavit that is presently before the court. That affidavit asserts that the undersigned judge has a "personal, religious bias" against him and in favor of the IRS. The basis of the bias, as asserted in the affidavit, involves the court's September 18, 1996, ruling on an earlier motion filed by the debtor. In that motion, the debtor sought the removal of the standing chapter 13 trustee, based on what the debtor said was the trustee's religious bias against him as a Muslim. This court, finding no bias on the part of the trustee and no prejudice to the debtor, denied the motion by memorandum opinion and order dated September 17, 1996. The debtor's timely motion to alter or amend that order was denied on September 24, 1996. The debtor has appealed that ruling to the United States District Court for the Eastern District of Virginia.
The memorandum opinion and order were entered on the docket on September 18, 1996.
Discussion
28 U.S.C. § 455 requires any justice, judge or magistrate (now magistrate judge) of the United States to disqualify himself or herself in any proceeding in which that judicial officer's impartiality might reasonably be questioned, or where he or she has a personal bias or prejudice concerning a party, has personal knowledge of disputed facts, was involved in the case in private practice or while serving as government counsel, has a financial interest in the matter in controversy, or is related to one of the parties or an attorney in the case. In addition, 28 U.S.C. § 144 gives a party "to any proceeding in a district court" the right to prevent a particular judge from hearing that case if the party files a timely and sufficient affidavit that the judge is biased against him or in favor of an adverse party. The specific language of the statute is as follows:
§ 144. Bias or prejudice of judge
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.
As a threshold issue, the court notes that 28 U.S.C. § 144 by its express terms applies only to "proceedings in a district court." For that reason, some courts have held that it has no application to a motion to recuse a bankruptcy judge. In re Goodwin, 194 B.R. 214 (9th Cir. BAP 1996) (bankruptcy judge subject to recusal only under 28 U.S.C. § 455, which does not require judge to take as true the factual allegations in the motion to recuse); In re Diaz, 182 B.R. 654 (Bankr. D. Puerto Rico 1995); In re Norton, 119 B.R. 332 (Bankr. N.D. Ga. 1990); In re Foster Iron Works, 3 B.R. 715 (S.D. Tex. 1980); contra, In re Muller, 72 B.R. 280 (C.D.Ill. 1987), aff'd 851 F.2d 916, cert. denied sub nom. Rogers v. First Nat'l Bank of Peoria, 490 U.S. 1007, 109 S.Ct. 1645, 104 L.Ed.2d 160 (1989). Such cases, I believe, take too narrow a view. The better view, I believe, is that proceedings before a bankruptcy judge are "proceedings in a district court" even though not presided over by a United States district judge. Under 28 U.S.C. § 1334, jurisdiction over bankruptcy cases, as well as of proceedings arising under the Bankruptcy Code, arising in a bankruptcy case, or related to a bankruptcy case, is vested in the United States district courts. Under 28 U.S.C. § 157(a) the district courts may refer bankruptcy cases and proceedings to the bankruptcy judges for that district, and every United States district court in this country has done so either by local rule or general order of reference. The bankruptcy judges in regular active service in a district constitute "a unit of the district court" known as the bankruptcy court for that district. 28 U.S.C. § 151. Thus, bankruptcy judges, when they hear and decide bankruptcy cases and proceedings, are exercising the jurisdiction of the district court. Since by statutory definition the bankruptcy court is a unit of the district court, it is difficult to see how referred proceedings before a bankruptcy judge would not be "proceedings in a district court." Accordingly, for the purpose of this opinion, I assume that 28 U.S.C. § 144 is applicable.
Of course, there is no question that 28 U.S.C. § 455 applies and requires that any "judge . . . of the United States" disqualify himself or herself where he or she "has a personal bias or prejudice concerning a party." The difference is that under 28 U.S.C. § 144, the judge is required — for the purpose of ruling on the disqualification motion — to accept as true the facts alleged in a timely filed affidavit, and may review only the legal sufficiency of those facts to show bias. No such deference is required to a motion made under 28 U.S.C. § 455.
As the statute is drafted, recusal of a judge on the ground of personal bias or prejudice is mandatory once a party submits a timely and sufficient affidavit and counsel presents a certificate stating that the affidavit is made in good faith. U.S. v. Sykes, 7 F.3d 1331 (7th Cir. 1993). Nevertheless, although facts stated in an affidavit of prejudice against a judge must be accepted as true, U.S. v. Thompson, 483 F.2d 527 (3rd. Cir. 1973), the judge may inquire into their legal sufficiency, and indeed must do so, since there is as much obligation not to recuse when there is no occasion as to do so when there is. Rosen v. Sugarman, 357 F.2d 794 (2nd Cir. 1966); Sine v. Local No. 992 Int'l Brotherhood of Teamsters, 882 F.2d 913, 914 (4th Cir. 1989). In particular, it is the duty of a judge not to permit an affidavit of prejudice to be used as a means to accomplish delay and otherwise defeat the orderly administration of justice. U.S. v. Hall, 424 F. Supp. 508 (D. Okla. 1975), aff'd 536 F.2d 313, cert. den. 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285.
See, also, Bradley v. School Board of the City of Richmond, 324 F. Supp. 439, 442-443 (E.D. Va. 1971)(Merhige, J.):
The case law is generally well settled to the effect that the truth of the alleged factual allegations contained in the affidavits is not subject to inquiry. The presiding judge, however, has the task of determining as a matter of law first whether a moving party's affidavit is timely filed, whether same makes the requisite allegations required by the statute, and whether such allegations provide fair factual support for the `belief that bias or prejudice exists.' Berger v. United States, 225 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). In short, while a judge may not pass on the truth of the alleged facts, he must decide whether the affidavit meets the procedural requirements laid down in the statute and whether, as just stated, the facts alleged give fair support to the charge of bias or prejudice.
To serve as a basis for recusal under 28 U.S.C. § 144, affidavits must be both "timely and sufficient." Sine, supra. The statute itself, which requires that the affidavit normally "shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard" makes it plain that timeliness is of particular importance. Duplan Corp. v. Deering Milliken, Inc., 400 F. Supp. 497 (D. S.C. 1975). Literal compliance with that time limit is problematical since United States district courts no longer hold formal terms. 28 U.S.C. § 138. Nevertheless, it is clear that the statute envisions the affidavit being filed sufficiently in advance of any hearing or trial that the case may be reassigned to another judge without unduly disrupting or delaying the proceedings. Bradley v. School Board of the City of Richmond, 324 F. Supp. 439, 443 (E.D. Va. 1971) (Merhige, J.) ("The purpose, of course, of a time requirement as provided in Section 144 is to establish an essential procedural safeguard by impeding the use of Section 144 as a delaying tactic"). At the very least, "the challenge must be made at the first opportunity after discovery of the facts alleged to tend to prove disqualification." Id. at 443 (emphasis added).
In this case, the "facts" relied on as establishing the bias of the presiding judge are the substantive ruling and choice of citations contained in the court's memorandum opinion and order of September 18, 1996, which denied the debtor's motion for removal of the chapter 13 trustee. That ruling, as noted above, is currently on appeal to the United States District Court. The important point, for the purpose of the present analysis is that September 18, 1996 was 20 days prior to the first hearing held on the debtor's objection to the IRS claim, 48 days prior to the second hearing, and 56 days prior to the filing of the affidavit of bias. See, Eisler v. United States, 170 F.2d 273 (App.D.C. 1948), cert. dismissed 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949) (affidavit filed 9 days after affiant first learned the identity of the trial judge was untimely); Faubus v. United States, 254 F.2d 797 (8th Cir. 1958) (affidavit of prejudice filed nine days after becoming party to suit and the day prior to hearing was not timely). By the time the debtor in this case belatedly filed his affidavit, the evidence of the parties (including live testimony of the debtor himself and of an IRS employee) had been taken, oral argument had been heard, and the matter had been taken under submission.
The debtor provides no explanation of why, even assuming he believed in good faith that the September 18, 1996, memorandum opinion and order evidenced a "personal" bias against him, he waited until 56 days later to file the affidavit. He states in his affidavit, "If the court considers this Affidavit untimely, it is to be noted that the Debtor, simply believed that because of the overwhelming facts stated on the record, that this Court would rule in accordance with the laws and ethical considerations." But the only rulings that had been made at the time the affidavit was filed were the ruling of September 16, 1996, denying confirmation of his plan, the ruling of September 18, 1996, denying his motion to remove the chapter 13 trustee, and the ruling of October 9, 1996, that sustained one of his objections to the IRS claim. In light of the debtor's record of serial filings in this court for the transparent purpose of frustrating the enforcement efforts of the Internal Revenue Service, it seems likely that the debtor's motive for the eleventh-hour filing of the affidavit of bias was solely to forestall an expected adverse ruling on his objection to the IRS claim — an objection that had been overruled twice before by two other judges of this court during the debtor's prior cases. Even if that were not the debtor's subjective purpose, as an objective matter the affidavit of bias has not been "filed with reasonable diligence," Bradley, supra, at 443, and disqualification of the presiding judge at this stage would seriously disrupt and delay the proceedings. Accordingly, the court concludes that the affidavit was not timely under 28 U.S.C. § 144.
Since the affidavit of bias was not timely, the court need not reach the issue of the affidavit's failure to "be accompanied by a certificate of counsel of record stating that it is made in good faith," as required by 28 U.S.C. § 144. See, Duplan Corp. v. Milliken, Inc., supra (statutory language requiring that affidavit be accompanied by certificate is subject to strict construction.). The requirement for a certificate of counsel is founded on the assumption that counsel who is a member of the court's bar will not execute such a certificate in reckless disregard of the truth. Morrison v. U.S., 432 F.2d 1227 (5th Cir. 1970), cert. denied 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed. 227; U.S. v. Hoffa, 382 F.2d 856 (6th Cir. 1967), cert. denied 390 U.S. 924, 88 S.Ct. 854, 19 L.Ed.2d 984 (statutory requirement not satisfied by having another lawyer, who did not represent the defendant during trial, execute the certificate). The debtor in this case is not represented by counsel, but is conducting his own case. See, 28 U.S.C. § 1654 ("In all courts of the United States the parties may plead and conduct their own cases personally . . ."). In United States v. Onan, 190 F.2d 1 (8th Cir. 1951), it was held that 28 U.S.C. § 144 does not permit a lay litigant to file a certificate of good faith. Other decisions, however, seem to imply that a party appearing pro se may execute a valid certificate of good faith. See, e.g., Hirschkop v. Virginia State Bar Assn., 406 F. Supp. 721, 724 (E.D. Va. 1975) ("Though plaintiff is, himself, counsel of record, nevertheless no such certification was made by plaintiff in either capacity" (emphasis added).
But even if the court were to find that the affidavit was "timely" — with the result that the court would be required to accept as true the facts stated in the affidavit — the facts alleged simply do not "give fair support to the charge of bias or prejudice." Bradley, supra, at 443. As noted above, the factual event recited in the affidavit as constituting evidence of bias is the memorandum opinion and order of September 18, 1996, denying the debtor's motion to remove the chapter 13 trustee for alleged religious bias against the debtor. In effect, the debtor argues that the denial of that motion reflects the present judge's personal religious bias against the debtor. As the court stated in Bradley,
The bias or prejudice which will disqualify a judge must be a personal bias or prejudice as distinguished from a judicial one. It must be a bias which is extra-judicial in nature. See Knapp v. Kinsey, supra, 232 F.2d 466 (6th Cir. 1956). Nor is it sufficient that the alleged bias or prejudice arises from the judge's view of the law, which may have been expressed by him.
324 F. Supp. at 444-45. Put another way, a judge's actions or experience in a case or related cases or attitude derived from his or her experience on the bench do not constitute a personal bias. Sine, supra, at 915.
Since the September 18, 1996, order is currently on appeal, an extended discussion of the merits of that ruling is not appropriate. Suffice it to note that the debtor complained that, after he (the debtor) declined on religious grounds to take an oath at the meeting of creditors, the chapter 13 trustee stated that he would not take the debtor's testimony. No creditors were present, and the chapter 13 trustee was fully aware, from the three prior filings, that the purpose of the current filing was simply to carry on the debtor's dispute with the IRS. In short, there simply was no need for any testimony at the meeting. The trustee disclaimed any religious bias, and the court found his explanation of the remark at the meeting of creditors credible. Consequently, the court denied the motion to remove and reprimand the chapter 13 trustee.
Whether the court's ruling was legally correct will be decided on appeal. All human decision making is fraught with the potential for error, and trial courts often make rulings that appellate courts find incorrect. That is why we have a system of appeal. But a trial judge's rejection, during a legal proceeding, of a legal argument made by a party to that proceeding, does not constitute a "personal" bias against that party as required for recusal under either 28 U.S.C. § 144 or 28 U.S.C. § 455. Nor is a legal ruling transformed into evidence of a judge's "personal bias" simply because it rejects an argument that someone else — in this case, the chapter 13 trustee — is personally biased against the debtor.
The debtor's affidavit, while it focusses primarily on the substance of the court's September 18, 1996, ruling, also asserts that the use of certain citations in the court's memorandum opinion evidences a personal religious bias against him as a Muslim. Nothing could be further from the truth. The opinion fully acknowledged and upheld the debtor's right, on the ground of religious objection, to affirm rather than swear when called upon to testify. In so doing, the opinion briefly traced the history of religious objection to the taking of judicial oaths and the law's response allowing witnesses opposed, on the ground of religious belief, to taking such oaths to instead solemnly affirm the truth of their testimony. The specific examples of such religious objection were indeed drawn from Christian history, as those examples were the most readily available, but the discussion made it clear that the right to affirm rather than swear was not dependent on the witness belonging to any particular religious tradition (or for that matter, holding any religious belief at all). The only reason the court did not cite from the Holy Qur'an was not out of antipathy or bias against Islam, but because the court's own research had not uncovered a reference to relevant passages in that scripture, nor had the debtor pointed the court to any such passage.
Indeed, at the November 5, 1996, hearing on the objection to the IRS claim, the debtor did affirm rather than swear when he testified as a witness.
As noted in the September 18, 1996, memorandum opinion, I assume without deciding that Islam prohibits the taking of judicial oaths, although it is by no means clear that such is indeed the case.
As illustrative of how English law had accommodated itself to varied religious beliefs of those called to testify, the court in its memorandum opinion quoted from an old (1910) reference that used an obsolete term ("Mahommedins") for adherents of the Islamic faith. The debtor complains that that term is highly offensive to Muslims as implying that they worship Muhammad rather than Allah. The court, although certainly aware that the term was obsolete, was unaware that it was offensive. The court, however, accepts the debtor's representation on that point and apologizes for any unintended insult. The choice of quotation, however, was not in any manner intended to "demean Muslims," as the debtor asserts, but simply to describe the procedure used in English courts when Muslims testified. The court, aside from (accurately) quoting from the cited reference, never used the term in its own discussion, but consistently referred to the debtor as a Muslim.
In short, the court can only conclude that nothing in the memorandum opinion and order gives "fair support" to the assertion that the presiding judge in this case harbors a personal, religious bias against the debtor. The issue here is not what the debtor subjectively believes, but what a reasonable person would conclude from the facts stated in the affidavit. While the facts alleged in the affidavit reflect the court's rejection of the debtor's legal position, they do not fairly evidence a personal animus against him. Accordingly, the affidavit of bias, even if it were considered timely, is insufficient under 28 U.S.C. § 144 for the purpose of requiring the undersigned judge to disqualify himself, either with respect to the matter under submission at the time the affidavit was filed or with respect to further proceedings in this case.
Of course, under 28 U.S.C. § 455, a judge is required, even in the absence of a recusal motion, to disqualify himself or herself if he or she holds a personal bias or prejudice against a party, or if his or her impartiality "might reasonably be questioned." In this connection, the court has searched its conscience and is emphatically convinced that, whatever view it may have formed of the merits and sincerity of the various legal arguments advanced by the debtor in this case, the court holds no personal bias against him, religious or otherwise. Accordingly, treating the affidavit of bias as a motion or suggestion for recusal under 28 U.S.C. § 455, the court finds no basis for recusal.
In this connection, the court will briefly address two points raised by the debtor in his affidavit. First, the debtor argues that the presiding judge "as an employee of the United States Government" cannot be "fair and impartial" in a controversy between him and the IRS, since "most employees maintain a strong loyalty to their employer." This argument ignores, first, the separation of powers under the Constitution, with the judiciary being a separate branch of government from the executive. Put simply, the judge presiding over this case is not an "employee" of the IRS, the Department of the Treasury, the Department of Justice, or any other component of the executive branch. Second, since every federal judge receives his or her pay check from the United States Government, precisely the same argument could be made of any bankruptcy judge to whom this case might be assigned. In such circumstances, the law takes the sensible view, sometimes termed the "rule of necessity," that "where all are disqualified, none are disqualified." Pilla v. American Bar Assn., 542 F.2d 56, 59 (8th Cir. 1976); In re City of Houston, 745 F.2d 925, 930 n. 9 (5th Cir. 1984); Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887 (1920); United States v. Will, 449 U.S. 200, 218, 101 S.Ct. 471, 482, 66 L.Ed.2d 392 (1980)
Indeed, each of the two other bankruptcy judges regularly hearing cases in this division have previously ruled against the debtor on his objection to the IRS claim. Since under 28 U.S.C. § 144, only one affidavit of bias may be filed in a case, the result — were the current judge to recuse himself — would be the reassignment of the case to a judge who has already ruled against the debtor on the very matter with respect to which he seeks the recusal of the current judge.
( 28 U.S.C. § 455 "was not intended by Congress to alter the time-honored Rule of Necessity.")
Secondly, the debtor complains, as further evidence of bias against him, that the court refused his request "to have the Clerk of the Court permit debtor to obtain a copy of the audio taped transcript of the [November 5, 1996] proceedings." However, there is no "taped transcript" of the hearing. All the hearings in this court are reported by a contract court reporting service. The reporters covering the hearings in this case, including the hearing on November 5, 1996, have taken down the testimony using a closed-microphone ("stenomask") system. As a backup, the court reporter uses an open-microphone system to make an audio tape. Any party, including the debtor, is entitled, upon payment of the court reporter's authorized fees, to a transcript of the proceedings. But a party is not entitled under any statute or rule to a copy of the court reporter's backup audio tapes in lieu of ordering a transcript from the reporter. The debtor here is not being treated differently than any other litigant before this court and has exactly the same access as any other litigant to a transcript of the proceedings.
The situation with respect to the meeting of creditors is different. The Office of the United States Trustee uses an open microphone system as its method of reporting the proceedings, and official transcripts are not prepared. Copies of audio tapes are provided upon payment of the copy fees prescribed by the Judicial Conference of the United States, and the party may then have the tape transcribed by an outside service.
A separate order will be entered consistent with this opinion denying the motion for recusal.