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BARNETT v. CITY OF CHICAGO

January 27, 1997

RICHARD BARNETT, et. al., Plaintiffs,
v.
CITY OF CHICAGO, et. al., Defendants, and CAROLE BIALCZAK, et. al., Defendant-Intervenors. MARY BONILLA, et. al., Plaintiffs, v. CITY OF CHICAGO, et. al., Defendants, and CAROLE BIALCZAK, et. al., Defendant-Intervenors.



The opinion of the court was delivered by: DUFF

 In order for a court "to perform its high function in the best way, justice must satisfy the appearance of justice." In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955). This general principle is embodied by the "catch-all" federal recusal statute, 28 U.S.C. § 455(a), which provides that:

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

 After careful reflection, I am convinced that in order to do justice, and to preserve the appearance of justice, I must deny the motion to recuse myself brought by the Barnett class counsel, Messrs. Pincham, Neville and Howse ("movants"). *fn1"

 In Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994), the Supreme Court made it clear that, except in the most extreme of circumstances demonstrating favoritism, disqualification for partiality is subject to the "extrajudicial source" limitation. 114 S. Ct. at 1157. This means that determinations of bias or partiality cannot be based on opinions, rulings, or incidents arising from the course of the judicial proceedings at issue. Id. Put simply, the "extrajudicial source" doctrine provides that "the alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778 (1966).

 The "extrajudicial source" doctrine, however, does not require that every scrap of knowledge acquired outside of judicial proceedings will necessarily result in recusal. While the mere presence of an extrajudicial source does not automatically establish bias, neither does the absence of an extrajudicial source necessarily preclude bias (although absent some extrajudicial bias it is exceedingly difficult to establish bias justifying recusal). Liteky, 114 S. Ct. at 1157. Judges are not selected because they are naive waifs who have no life-experiences. They bring to the bench whatever experiences, interests, moral sentiments, and enthusiasms which they may have acquired in their lives. In fact, judges are selected, in large part, on the basis of the character and experience they bring to the bench. As intelligent individuals, they also bring to the bench whatever interpretive tendencies they might have had before becoming federal judges. Judges, however, no matter what their backgrounds or temperaments, must always strive to put aside their out of court experiences or perspectives in order to apply the law to the particular facts presented in the courtroom. For some, this is sometimes a difficult mental exercise, but it is one of the hallmarks of being a responsible jurist.

 Movants argue that I should recuse myself because I have made several rulings adverse to the Barnett class or its attorneys. The Supreme Court has spoken with perfect clarity holding that adverse rulings almost never constitute an adequate basis for recusal: "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 114 S. Ct. at 1157. The Supreme Court elaborated the extent to which observations and rulings arising from the course of trial are almost never an adequate basis for recusal:

 
..opinions formed by the judge on 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.

 Id., at 1157. The recusal statute "was never intended to enable a discontented litigant to out a judge because of adverse rulings made, ... but to prevent his future action in the pending cause." Id., at 1154 (quoting Ex parte American Steel Barrel Co., 230 U.S. 35, 44, 33 S. Ct. 1007, 1010, 57 L. Ed. 1379 (1913)).

 Judicial rulings alone almost never constitute a basis for disqualifying a judge because rulings "are proper grounds for appeal, not for recusal." Liteky, 114 S. Ct. at 1157. In fact, movants' complaints with my ruling removing them as counsel of record have already been addressed by the Seventh Circuit and movants have been reinstated as counsel of record for the Barnett class. See In re Barnett, 97 F.3d 181 (7th Cir. 1996). In Liteky, however, the Supreme Court left open the possibility that a judicial ruling might be a basis for disqualification in "the rarest of circumstances" when a ruling exhibits a deep-seated favoritism or antagonism making fair judgment impossible or when a ruling is derived from an extra-judicial source. Liteky, 114 S. Ct. at 1157. The relevant inquiry, thus, is not whether a particular ruling was correct but whether a ruling is one of those exceedingly rare rulings exhibiting such pervasive animosity to the parties that fair judgment is impossible. Should disqualification result merely as a result of counsel's disagreement with judicial conclusions reached in the course of litigation, the judicial system would grind to a halt.

 Judicial expressions of impatience or annoyance with the conduct of attorneys are an adequate basis for establishing bias or partiality in only the rarest of circumstances. 28 U.S.C. § 455(a) requires an appearance of partiality in a case, not merely an expression of dislike for the attorneys representing a party. See eg., In re Forty-Eight Insulations, Inc., 84 Bankr. 129, 132 (N.D.Ill. 1988). An appearance of partiality cannot necessarily be presumed to follow from a stormy relationship with the attorneys for a party. In re National Union Fire Insurance Co. of Pittsburgh, 839 F.2d 1226, 1232 (7th Cir. 1988). After all, even a federal judge may be prone to "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women ... sometimes display." Liteky, 114 S. Ct. at 1157. Rather than demonstrate bias, a court's impatience or frustration with counsel is often the result of the recognition that an attorney has not diligently represented a client's interests or is not responsibly prosecuting a case. In my opinion, it is this Court's responsibility to express its displeasure when it observes that an attorney is failing to live up to his or her responsibilities to a client, particularly when a case, such as this one, touches upon a right so fundamental as the right to participate in the political process.

 In a related vein, a judge must, of course, administer his or her courtroom and docket, and such administration, no matter how stern, should not be confused with animus or partiality:

 
A judge's ordinary efforts at courtroom administration -- even a stern and short-tempered judge's ordinary efforts at ...

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