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September 5, 1984


The opinion of the court was delivered by: Shadur, District Judge.


M.K. Metals, Inc. ("M.K.") has asked that I recuse myself under 28 U.S.C. § 455 ("Section 455"). For the reasons set forth in this memorandum opinion and order, M.K.'s request is denied.


In response to one of the inquiries posed by this Court's form of final pretrial order, National Steel Corp. ("National") announced it would call as an expert witness Professor Dennis Carlton, a senior economist and principal at Lexecon, Inc. ("Lexecon") and an economist at the University of Chicago Law School. At the immediately ensuing pretrial conference I disclosed (in conformity with the Code of Judicial Conduct) that although I do not know Professor Carlton I have had the following connections with Lexecon:

    1. Before I joined this District Court in June
  1980, my then law firm and I represented Lexecon
  and two of its three principals, then Professor
  (now Circuit Judge) Richard Posner and Andrew
  Rosenfield (a non-practicing lawyer now in his
  early thirties). Because both those principals
  were lawyers and because Lexecon's regular
  business affairs did not involve the need for
  outside legal representation, what my law firm
  and I did for Lexecon was in discrete areas:
  formation of the corporation (done by others in
  the firm), obtaining an opinion from the ABA
  Committee on Professional Responsibility (handled
  by me) and negotiation of an office lease (also
  handled by me). My former firm no longer
  represents either Lexecon or its principals and
  has not done so for some time (because I have not
  kept in touch with either Lexecon or with the
  firm's activities, I do not know when the
  representation ceased).*fn1 Andrew Rosenfield is
  still a principal in Lexecon, and I assume Judge
  Posner is not.
    2. Though I did not detail to the parties my
  representation of Andrew Rosenfield individually,
  the facts are that during my last two years in
  the practice of law that consisted of my devoting
  something under five hours to conferring with him
  about tax and estate planning matters. During the
  latter part of that period my then law firm was
  also involved in some services in connection with
  an art gallery his wife (who has independent
  assets) was setting up.
    3. Maurice Rosenfield, father of Andrew and
  himself a non-practicing lawyer, has been and
  still is of counsel to my former law firm.
    4. Maurice Rosenfield and his wife Lois had
  established a number of family planning trusts
  many years ago,*fn2 under all of which Andrew
  and his brother were, and presumably still are,
  beneficiaries (either vested or contingent). In
  each instance Maurice Rosenfield and I were
  designated the original co-trustees. Andrew has
  no power to designate trustees, to draw down
  funds or to control the trusts' investment or
  management decisions. When I was appointed to the
  federal bench, consistent with the Code of
  Judicial Conduct I resigned all those
  trusteeships. Since that time I have had no
  knowledge of the trusts or any matters relating
  to them (with the exception of the
  collaterally-learned information referred to in
  Paragraph 5), and I do not know the identity of
  the present Trustee or Trustees (save that
  Maurice presumably is still serving, and under
  the trusts' provisions Andrew cannot now be
  serving, in that capacity).
    5. Both the Rosenfield family trusts referred
  to in Paragraph 4 (not Andrew individually) and I
  hold separate investments as limited partners in
  two limited partnerships. Under those
  partnerships the law requires (and the facts are)
  that the limited partners play no part in
  management at all. Like corporations, the limited
  partnerships are investment vehicles (indeed the
  voting rights of corporate shareholders are greater
  than any voting rights of the limited partners). In
  each instance I (or my wife and I collectively) own
  something less than a 2% interest in the investment
  limited partnership, while the Rosenfield family
  trusts hold a larger, but also minority,

Shortly after the pretrial conference M.K. asked that I consider possible recusal. Then the parties requested deferral of the question while they negotiated a possible settlement. Now those discussions have not borne fruit, and M.K. has renewed its request for recusal.

Standards for Recusal

Section 455 defines the criteria for disqualification of judges. M.K. does not assert (nor could it) any of the specific grounds for recusal enumerated in Section 455(b) apply here. For example, I certainly have no "financial interest in the subject matter in controversy," nor do I have "any other interest that could be substantially affected by the outcome of the proceeding" (Section 455(b)(4)). M.K.'s request for recusal is novel because it invokes my relationship to a witness rather than a party. Thus any "interest" I even arguably have is extremely attenuated: It is neither an interest "in the subject matter" nor one capable of being "substantially affected by the outcome."

Accordingly M.K. focuses its recusal argument on the catch-all language of Section 455(a), which reads in its entirety:

  Any justice, judge, or magistrate of the United
  States shall disqualify himself in any proceeding
  in which his impartiality might reasonably be

Because Section 455(a) contains an objective standard, the issue is controlled neither by my own view of my ability to preside impartially over the case nor by the fact that M.K.'s principal has questioned my impartiality. In either case my impartiality must have been questioned reasonably.

In re United States, 666 F.2d 690, 694 (1st Cir. 1981) (citation omitted) states the competing policies in light of which my relationship to Lexecon must be considered:

  The first and most obvious policy is that courts
  must not only be, but must seem to be, free of
  bias or prejudice. To ensure

  that the proceedings appear to the public to be
  impartial and hence worthy of their confidence,
  the situation ...

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