Defendants Joe Arpaio and Jerry Sheridan (not pictured right) have taken the extreme step of filing a “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow.”
Under statute, case law, and judicial canons, the perception of judicial bias and the appearance of impropriety, punctuated by the material witness status of the presiding judge’s spouse, mandate the recusal and disqualification of the Honorable G. Murray Snow.
I suppose that I have some sympathy for the recusal argument, given that Arpaio’s investigation of the judge and his family has entered the case record. I don’t buy some of the arguments for actual bias—when they follow the Orly Taitz model for proving judicial bias: the judge ruled against me. Federal law requires disqualification when a judge’s impartiality “might reasonably be questioned.” It does not require proof of actual bias. Here are some things to consider:
- Significant judicial resources have already been invested in the Melendres case.
- The 9th Circuit Court of Appeals has already rejected a motion for the recusal of Judge Snow on similar allegations.
- It is unlikely that Judge Snow’s wife will be a material witness in the case.
The Supreme Court said in Liteky v. United States:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.
Further, actions by a party that might create animus on the part of a judge (like investigating their wife) do not created grounds for disqualification. The Third Circuit said that the courts should not “encourage tactics designed to force recusal.”1
One matter that is raised late in the motion regarding what the judge’s wife said:
Moreover, regardless of the irrelevance of the Grissom and Montgomery investigations to the issue of whether the admitted contempt of the Preliminary Injunction occurred, Judge Snow infused himself and the materiality of his wife as a witness and her uncontradicted statement into the contempt proceeding. Whether a sitting judge is admittedly biased toward a defendant in his Court and will do anything to ensure he is not re-elected is – without question – a conflict that creates grounds for recusal.
It might have constituted grounds for recusal when Defendants became aware of it in August of 2013, but all of the circuit courts agree that such motions for recusal must be made “at the earliest moment after knowledge of the facts demonstrated the bias for such disqualification.”2 In particular the 9th Circuit requires “reasonable promptness after the ground for such a motion is ascertained.”3 Evidence of bias is not something that a party can keep in reserve until he feels he needs it.
My preceding comments refer to disqualification under 28 U.S. Code § 455, which requires recusal based on the appearance of bias. Arpaio’s attorneys have filed both under § 455 and § 144, the latter dealing with actual bias. A challenge under § 144 is rather a nuclear option. It can be done only once in a case, and it requires an affidavit by the party and a certificate of good faith from counsel that the judge is biased, and results in automatic transfer of the case to another judge. However, filings under § 144 must be timely:
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.
I am not seeing how this motion is timely. Further, the affidavit, must allege facts sufficient to lead a reasonable person to believe that the judge is biased, and the discussion of § 455 applies and the deficiencies of the Arpaio motion already discussed are relevant.
In any case, I’m not qualified to judge the merits of the Arpaio filing, so I’ll wait and see what happens.
Legal citations in this article found in the Federal Judicial Center paper listed below.
- Arpaio affidavit
- 28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge
- 28 U.S. Code § 144 – Bias or prejudice of judge
- Judicial Disqualification: An Analysis of Federal Law – Federal Judicial Center
1United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994)
2Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)
3Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991)