The opinion of the court was delivered by: TEITELBAUM
This protracted litigation is now before the Court for resolution of its final aspects. However, before the substantive aspects of the case may be dealt with it is necessary to resolve a preliminary matter.
MOTION FOR DISQUALIFICATION
Counsel for plaintiffs, Michael P. Malakoff, has moved the Court to recuse itself under 28 U.S.C. § 144 and 28 U.S.C. § 455(b)(1). Section 144 of the Judicial Code reads as follows:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
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. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
The relevant portion of Section 455 (the remainder of the statute merely sets out definitions and specific grounds for disqualification, such as financial interest or blood relation to a party, which are not alleged here) reads as follows:
"(a) Any justice, judge, magistrate or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."
Subsection 3 of amended Section 455 (Pub.L. 93-512) provides: "This Act shall not apply to the trial of any proceeding commenced prior to the date of this Act [Dec. 5, 1974], nor to appellate review of any proceeding which was fully submitted to the reviewing court prior to the date of this Act." The above-captioned action was filed in 1971, some three years prior to the effective date of § 455(b)(1). However, since amended § 455 changes the original Section 455
by liberalizing the disqualification procedure to favor the moving party,
I will consider both amended Section 455 and Section 144 to be equally applicable.
Initially, it is important to point out that the language of § 455(a) that disqualification is called for "in any proceeding in which [the judge's] impartiality might reasonably be questioned," does not amount to a grant of automatic veto power in order that counsel might choose a judge who meets with their approval. As stated by the Senate Judiciary Committee in discussing revised § 455:
"[In] assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are, in fact, seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a 'reasonable fear' that the judge will not be impartial. Litigants ought not to have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice." S.Rep. No. 93-419, 93d Cong., 1st Sess. 1973, p.5 (emphasis in original).
The other applicable statute, 28 U.S.C. § 144, provides the means by which a litigant can file an affidavit of such bias or prejudice as is contemplated by § 455. Section 144 requires disqualification if the affidavit is sufficient, that is, based upon specific facts and reasons, rather than upon conclusory allegations and speculation. Action Realty Co. v. Will, 427 F.2d 843 (8th Cir. 1970). Although the facts stated in such an affidavit must be accepted as true
by the judge even though he knows them to be false ( Hodgson v. Liquor Salesmen's Union, 444 F.2d 1344 (2d Cir. 1971)), the affidavit must be strictly construed against the party seeking disqualification. Beland v. U.S., 117 F.2d 958 (5th Cir. 1941). "In sum, a judge must be presumed to be qualified, and there must be a substantial burden upon the affiant to show grounds for believing the contrary." In re Union Leader Corp., 292 F.2d 381, 389 (1st Cir. 1961).
The judge who is the object of the affidavit must determine the factual and legal sufficiency of the motion and ascertain whether the facts alleged fairly support a charge of bias or prejudice. Grimes v. United States, 396 F.2d 331 (9th Cir. 1968); Deal v. Warner, 369 F. Supp. 174 (D. Mo. 1973).
Malakoff's affidavit states that "plaintiffs and their attorneys believe that this court:
a. Has a personal prejudice against the law firm of Berger & Kapetan and those attorneys associated with it on this case;
b. Has a personal prejudice against those persons who sue 'charitable' state-related universities;
c. Has a personal prejudice against those persons who bring class actions."
The Court need not, of course, engage in point by point discussion or denial of the matters raised in such an affidavit in order to pass upon its sufficiency. The amendments to § 455 were not designed to encourage debate between the judiciary and the federal bar. Malakoff contends that 1) off-the-record statements made at conferences on April 19 and May 14, 1974, statements made off the record because they did not concern the subject of those conferences; and 2) the report of counsel from another firm of a private conversation I supposedly had during a 1973 Bench-Bar Conference;
and 3) my decision in an entirely unrelated case, support his allegations of prejudice.
It is of particular concern to me that counsel seems here to misapprehend the critical distinction between a Federal judge's expression of personal philosophy (which is certainly permissible) and his expression of an opinion on some facet of a particular case which is before him (which would be impermissible). This is especially so with regard to my alleged remarks at the 1973 Bench-Bar Conference. If this distinction did not apply, a judge could neither write books nor articles, nor could he speak on legal subjects. Indeed, he could not write ...