Appeal from the United States District Court for the Eastern District of Wisconsin. No. 72-C-470 -- Terence T. Evans, Judge .
Before Cummings, Chief Judge, Pell, Circuit Judge, and Larson,*fn* Senior District Judge.
See 102 S. Ct. 1256.The trial court denied the appellant's Fed.R.Civ.P. 60(b) motion, which sought to vacate a judgment of dismissal. *fn1 This appeal presents the question whether a trial court judge's considered refusal to recuse himself for alleged partiality, bias, or the appearance thereof, violates a party's right to due process of law and thereby renders any judgment of the trial court void.
The facts in this matter are fully laid out in the trial court's thorough Decision and Order of February 25, 1981, which is appended below. That decision denied the motion on the ground that the appellant had failed to establish that he had been denied the fundamental fairness to which he is constitutionally entitled.
This action for slander originated in 1972, and was dismissed in 1976 for failure to comply with discovery orders. That judgment of dismissal has already withstood one previous motion to vacate under rule 60(b); an appeal and petition for rehearing to this court, 587 F.2d 885 (7th Cir. 1976); and petitions for certiorari, 430 U.S. 946, 97 S. Ct. 1582, 51 L. Ed. 2d 794 (1977), and rehearing, 431 U.S. 926, 97 S. Ct. 2202, 53 L. Ed. 2d 241 (1977), in the United States Supreme Court. Although the plaintiff questioned Judge Warren's impartiality at his first appearance before him, that issue was not raised in any of those post-judgment or appeal proceedings. Although that failure creates substantial questions of waiver and res judicata, see, e. g., Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S. Ct. 317, 84 L. Ed. 329 (1940); Stoll v. Gottlieb, 305 U.S. 165, 172, 59 S. Ct. 134, 137, 83 L. Ed. 104 (1938); Kansas City Southern Railway v. Great Lakes Carbon, 624 F.2d 822 (8th Cir. 1980) (en banc), cert. denied, 449 U.S. 955, 101 S. Ct. 363, 66 L. Ed. 2d 220 the district court did not deem it necessary to reach those issues. We agree with the trial judge in that respect, and also agree that his Decision and Order of February 25, 1981, reached the proper result for the proper reasons. We therefore adopt that decision, which is attached as Appendix I, as the opinion of this court.
Civil Action No. 72-C-470
The complaint in this slander action was originally filed on August 18, 1972. In the action the plaintiff, Dr. Milton Margoles, claimed that Alida Johns, a newspaper reporter for The Journal Company, slandered him during conversations with members of the staff of an Illinois Congressman in the late summer of 1970.
Originally, this case was assigned to Judge John W. Reynolds of this district. In June of 1974, Dr. Margoles moved that Judge Reynolds recuse himself from the case. The principal reason cited in support of the motion was that Dr. Margoles could not receive a fair trial before Judge Reynolds because the judge was the Attorney General of the State of Wisconsin during the early 1960's, a time when questions concerning Margoles' state medical license were under consideration by the Wisconsin Medical Examining Board. Subsequently, prior to a ruling on plaintiff's recusal motion, the case was transferred to Judge Robert W. Warren upon his appointment to this court in 1974. Judge Warren had served as Attorney General of Wisconsin from 1969 until his appointment to the federal bench.
The first appearance of the parties before Judge Warren occurred on April 25, 1975. At the appearance, Dr. Margoles' attorney asked whether Judge Warren's having been Attorney General would create any question of impartiality. Judge Warren said that he had not had such contact with any Margoles matters as would cause a problem. Dr. Margoles concedes in his brief that the question was raised and considered, stating:
"(plaintiff's attorney) expressed to Judge Warren Dr. Margoles' concern about, and inquired of Judge Warren about his ability to be impartial to the Plaintiff because of his adversary position as Attorney General to Dr. Margoles. Judge Warren disclaimed any bias and did not disqualify himself." (Plaintiff's Brief, pp. 2-3).
Judge Warren was never asked to consider or resolve any substantive issue in the case. On October 23, 1975, three months prior to the then-scheduled trial date of January 12, 1976, the defendants moved under Rule 37, Fed.R.Civ.P., for an order dismissing the complaint. That motion was based upon the failure of the plaintiff to comply with discovery orders previously entered by Judge Warren in January and April, 1975. On January 5, 1976, the date of the final pretrial conference, Judge Warren heard oral argument on the motion to dismiss, considered and rejected plaintiff's motion for an adjournment of the trial date, and dismissed the case stating:
"(The Court) has the power in the face of prejudicial and willful failure to produce to utilize some pretty strong sanctions. I feel in this instance that you do have what amounts of willful failure to produce.... I think on the other hand the failure to produce, that is the heart of the controversy this morning, is in fact attributable to plaintiff and not to counsel.... I think that the defendant has been prejudiced and I think even more than the defendant the Court has been prejudiced, ... (I) am faced with the plaintiff's attorney standing up here and saying he was prejudiced by the failure of his own client to produce the documents.
"(T)he Court is persuaded that it is one of the unusual cases in which the Court should and does make a specific finding that the failure to produce herein is willful, that it is prejudicial, that the matter sought to be produced is highly relevant and material to the case..., and that the failure to produce that and comply with the procedural orders of the Court has been so prejudicial that the sanction called for ... is appropriate, and the Court does herewith order that the case shall be dismissed...." (Transcript of Proceedings 1/5/76, pp. 42-44).
Judgment of dismissal was entered on January 8, 1976.
Plaintiff moved under Rule 60(b) to vacate the judgment on February 4, 1976. Also on February 4, 1976, Dr. Margoles appealed the judgment of dismissal to the Seventh Circuit. Judge Warren's disclaimer of bias and his decision not to disqualify himself was not raised in the 1976 Rule 60(b) motion or as an issue before the Seventh Circuit.
On March 15, 1976, Judge Warren entered an order denying plaintiff's motion to vacate the judgment of dismissal, stating in part:
"The Court is of the opinion that, as evidenced in the rather lengthy order of dismissal, the facts of this case demonstrate failures to comply with clear and repeated discovery orders on the part of the plaintiff and/or his agents and/or attorneys, all to the substantial prejudice of the defendants and their counsel and the administration of this Court. It seems apparent that these failures were done either willfully or in conscious disregard of this Court's specific decrees; thus there was ample justification for entry of an order of dismissal pursuant to Rule 37(b)(2)(C)."
Dr. Margoles' appeal to the Seventh Circuit met with a similar lack of success. In a decision embracing both the dismissal order and the denial of the Rule 60(b) motion, the Seventh Circuit affirmed Judge Warren. Margoles v. Johns, 587 F.2d 885 (7th Cir. 1978).
Plaintiff's subsequent petition to the Seventh Circuit for a rehearing was denied by order of the Seventh Circuit on November 16, 1976.
Apparently undaunted, Dr. Margoles petitioned the United States Supreme Court for a writ of certiorari on February 2, 1977. The petition was denied by an order entered on March 28, 1977. Plaintiff's petition for rehearing by the Supreme Court was also denied on May 16, 1977.
Three years later, almost five years after this case was dismissed by Judge Warren and over five and one-half years after Dr. Margoles first appeared before Judge Warren at the April, 1975 pretrial conference, Dr. Margoles seeks to resurrect this action by bringing a second Rule 60(b) motion, claiming that the proceedings before Judge Warren were not consistent with the ...