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Recusal
Mark: Perish the thought. We have no judges who don't believe in Chapter
13!!! LOL.
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (818) 554-9922
Mark: Perish the thought. We have no judges who don't believe in Chapter 13!!! LOL.
R. Grace Rodriguez, Esq.OFF: (818) 734-7223CEL: (818) 554-9922
The post was migrated from Yahoo.
Could that be like a 40 page list of instructions which basically require
you to prove the existence of a Unicorn in order to get a Chapter 13 Plan
confirmed?
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (818) 554-9922
Could that be like a 40 page list of instructions which basically require you to prove the existence of a Unicorn in order to get a Chapter 13 Plan confirmed?
R. Grace Rodriguez, Esq.OFF: (818) 734-7223CEL: (818) 554-9922
The post was migrated from Yahoo.
You're reading my mind. The case says that its not party specific - hateing the party for stuff that happened in the case is not grounds for recusal. It has to be more broad than that and proven with facts outside the specific case or statements in the case that show an antagonism to a class.
>
> Professor Hayes..... does this have to be party specific or could it be
> also based upon a Judge's attitude towards particular law and a particular
> disregard for the spirit of the law to have that judge recuse from say a
> Chapter 13 case?
>
> Just wondering?
>
>
>
> R. Grace Rodriguez, Esq.
> OFF: (818) 734-7223
> CEL: (818) 554-9922
>
The post was migrated from Yahoo.
Professor Hayes..... does this have to be party specific or could it be
also based upon a Judge's attitude towards particular law and a particular
disregard for the spirit of the law to have that judge recuse from say a
Chapter 13 case?
Just wondering?
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (818) 554-9922
Professor Hayes..... does this have to be party specific or could it be also based upon a Judge's attitude towards particular law and a particular disregard for the spirit of the law to have that judge recuse from say a Chapter 13 case?
Just wondering?
The post was migrated from Yahoo.
There is a new published 9th Cir decision (from the Marshall v. Marshall
gang again) that has a very nice summary of how recusal works. You can
find it on the 9th Circuit website.
"recusal under 455(a) requires a finding of 'an animus more active
and deep-rooted than an attitude of disapproval toward certain persons
because of their known conduct'"
Below is that portion of the opinion almost verbaitim:
Elaine contends that Judge Bufford should have recused himself from the
Debtors' bankruptcy case pursuant to 28 U.S.C. 455. Section
455(a) requires recusal when "a reasonable person with knowledge of
all the facts would conclude that the judge's impartiality might
reasonably be questioned." F.J. Hanshaw Enters., Inc., v. Emerald
River Dev., Inc., 244 F.3d 1128, 1144 (9th Cir. 2001). First, Elaine
argues that Judge Bufford failed to apply the correct legal standard in
denying recusal. During a hearing on the recusal motion, Judge Bufford
stated that the "[a]ppearance of impropriety is not a basis for
recusal." This was undeniably a misstatement of the law. See
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988)
("The goal of section 455(a) is to avoid even the appearance of
partiality." (quoting Health Servs. Acquisition Corp. v. Liljeberg,
796 F.3d 796, 802 (5th Cir. 1986))). Proof of actual bias is not
required under 455(a). Instead, bias should "be evaluated on an
objective basis, so that what matters is not the reality of bias or
prejudice but its appearance." Liteky v. United States, 510 U.S.
540, 548 (1994). "It is well established that the recusal inquiry
must be made from the perspective of a reasonable observer who is
informed of all surrounding facts and circumstances." Cheney v. U.S.
Dist. Ct., 541 U.S. 913, 924 (2004) (emphasis and internal quotation
marks omitted).
The salient inquiry, then, is whether Judge Bufford abused his
discretion in concluding that his conduct in the Vickie case did not
give rise to an appearance of bias against Pierce that warranted his
recusal from the Debtors' proceedings.
Moreover, "the judge's conduct during the proceedings should
not, except in the `rarest of circumstances' form the sole basis
for recusal under 455(a)." United States v. Holland, 519 F.3d
909, 91314 (9th Cir. 2008) (quoting Liteky, 510 U.S. at 555).
"[O]pinions 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 deepseated favoritism or antagonism that would
make fair judgment impossible." Liteky, 510 U.S. at 555.
Similarly, Judge Bufford's comments towards Pierce and his attorney
during Vickie's case might also be reasonably seen as the product of
Judge Bufford's frustration with Pierce's behavior throughout
the litigation. See F.J. Hanshaw Enters., Inc., 244 F.3d at 114445
("[P]redispositions developed during the course of a trial will
[rarely] suffice." (citing Liteky, 510 U.S. at 54445)); United
States v. Conforte, 624 F.2d 869, 881 (9th Cir. 1980) (explaining that
recusal under 455(a) requires a finding of "an animus more
active and deep-rooted than an attitude of disapproval toward certain
persons because of their known conduct"). For example, Judge Bufford
referred to Pierce as "a Defendant with extremely dirty hands,"
told Pierce's counsel to bring certain documents to court or
"bring [his] toothbrush," to bring his "checkbook" to a
hearing, and that he had "substantial experience with the way
[Pierce's] side has handled cases." These statements, while
potentially indicative of personal bias, are not serious enough to
overcome the high standard set forth in Liteky: [J]udicial 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.
There is a new published 9th Cir decision (from the Marshall v. Marshall gang again) that has a very nice summary of how recusal works. You can find it on the 9th Circuit website.
"recusal under 455(a) requires a finding of 'an animus more active and deep-rooted than an attitude of disapproval toward certain persons because of their known conduct'"
Below is that portion of the opinion almost verbaitim:
Elaine contends that Judge Bufford should have recused himself from the Debtors' bankruptcy case pursuant to 28 U.S.C. 455. Section 455(a) requires recusal when "a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." F.J. Hanshaw Enters., Inc., v. Emerald River Dev., Inc., 244 F.3d 1128, 1144 (9th Cir. 2001). First, Elaine argues that Judge Bufford failed to apply the correct legal standard in denying recusal. During a hearing on the recusal motion, Judge Bufford stated that the "[a]ppearance of impropriety is not a basis for recusal." This was undeniably a misstatement of the law. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988) ("The goal of section 455(a) is to avoid even the appearance of partiality." (quoting Health Servs. Acquisition Corp. v. Liljeberg, 796 F.3d 796, 802 (5th Cir. 1986))). Proof of actual bias is not required under 455(a). Instead, bias should "be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance." Liteky v. United States, 510 U.S. 540, 548 (1994). "It is well established that the recusal inquiry must be made from the perspective of a reasonable observer who is informed of all surrounding facts and circumstances." Cheney v. U.S. Dist. Ct., 541 U.S. 913, 924 (2004) (emphasis and internal quotation marks omitted).
The salient inquiry, then, is whether Judge Bufford abused his discretion in concluding that his conduct in the Vickie case did not give rise to an appearance of bias against Pierce that warranted his recusal from the Debtors' proceedings.
Moreover, "the judge's conduct during the proceedings should not, except in the `rarest of circumstances' form the sole basis for recusal under 455(a)." United States v. Holland, 519 F.3d 909, 91314 (9th Cir. 2008) (quoting Liteky, 510 U.S. at 555). "[O]pinions 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 deepseated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555.
Similarly, Judge Bufford's comments towards Pierce and his attorney during Vickie's case might also be reasonably seen as the product of Judge Bufford's frustration with Pierce's behavior throughout the litigation. See F.J. Hanshaw Enters., Inc., 244 F.3d at 114445 ("[P]redispositions developed during the course of a trial will [rarely] suffice." (citing Liteky, 510 U.S. at 54445)); United States v. Conforte, 624 F.2d 869, 881 (9th Cir. 1980) (explaining that recusal under 455(a) requires a finding of "an animus more active and deep-rooted than an attitude of disapproval toward certain persons because of their known conduct"). For example, Judge Bufford referred to Pierce as "a Defendant with extremely dirty hands," told Pierce's counsel to bring certain documents to court or "bring [his] toothbrush," to bring his "checkbook" to a hearing, and that he had "substantial experience with the way [Pierce's] side has handled cases." These statements, while potentially indicative of personal bias, are not serious enough to overcome the high standard set forth in Liteky: [J]udicial 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.
The post was migrated from Yahoo.