not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies." Thornburgh, 476 U.S. at 759 (emphasis added).
Similarly, my opinion reflects that a woman's privacy rights may soon be determined by the legislative process. This reflection echoes the dissent in Webster v. Reproductive Health Services, 492 U.S. 490, 106 L. Ed. 2d 410, 109 S. Ct. 3040 (1989) (Blackmun, J. concurring in part and dissenting in part), in which Justice Blackmun wrote "this Court implicitly invites every state legislature to enact more and more restrictive abortion regulations . . . ." Id. at 538.
To the extent that my adoption of Justice Blackmun's view of the law can be read as an expression of disagreement with the current direction of abortion law, no reasonable basis for disqualification arises under 28 U.S.C. § 455(a). Recusal is not required simply because a judge holds and has expressed specific views on a legal subject. See, e.g., Blasband v. Rales, 979 F.2d 324 (3d Cir. 1992) (district court's expression of disagreement with court of appeals' holding not a basis for disqualification); Southern Pacific Communications Co. v. A.T.& T., 238 U.S. App. D.C. 309, 740 F.2d 980, 990 (D.C. Cir. 1984) ("the mere fact that a judge holds views on law or policy relevant to the decision of a case does not disqualify him from hearing the case"), cert. denied, 470 U.S. 1005, 84 L. Ed. 2d 380, 105 S. Ct. 1359 (1985).
A judge must be free to express his or her opinion on important questions of law without facing the risk of disqualification. To hold otherwise would intolerably handicap the judiciary and result in a muzzled federal bench making decisions that are "less rational and responsive to difficulties." Dronenburg v. Zech, 241 U.S. App. D.C. 262, 746 F.2d 1579, 1583 (D.C. Cir. 1984) (Bork, J., concurring in the denial of rehearing en banc). Further, the impartiality of a judge should not be questioned simply because he or she employs strong language in expressing that opinion, especially if such language is used in closing for emphasis. As succinctly stated by the First Circuit, "if a concluding paragraph using colorful language to drive home a point proves an entire opinion biased, then few, if any judicial opinions pass muster under § 455(a)." Blizard v. Frechette, 601 F.2d 1217, 1221 (1st Cir. 1979).
iii. The Influence of Media Reports
In support of their contention that a reasonable appearance of bias has resulted from the language of my opinion, defendants point to various statements of the press that allegedly suggest bias. Apparently, defendants equate the media with "a reasonable person knowing all the circumstances." However, as previously stated, the correct standard in a determination of apparent bias is the perception of the reasonable person knowing all the circumstances, not the opinion of specific members of the press. To the extent that the tone of the media coverage, or defendants' impression of that tone, diverges from an objective view of a reasonable person aware of the surrounding circumstances, the reasonable person's view governs.
Defendants offer various articles which simply report my opinion, often verbatim. Obviously, these articles do not create grounds for disqualification if the language of the opinion itself does not. Other cited articles comment on the Court's "criticism" of the Pennsylvania legislature, some specifically mentioning the language that described the legislature as hostile to a woman's right of privacy to choose an abortion. See, Don DeBenedictis, Two Abortion Laws Struck Down, A.B.A.J., Nov. 1990, at 20; David Treadwell, Pennsylvania Abortion Law's Key Parts Voided, Los Angeles Times, Aug. 25, 1990, at A2; Federal Court Strikes Down 1988 and 1989 Pennsylvania Abortion Control Acts, PR Newswire, Aug. 24, 1990; Ruling Striking Pa. Abortion Law To Be Appealed, United Press Int'l, Aug. 24, 1990. While my observation of "hostility" in the legislature may or may not be criticism, such an observation should not leave the impression of bias to the reasonable observer, especially in light of Justice Blackmun's characterization of state legislatures as trying to "intimidate" women in Thornburgh.
More troublesome are the remarks of two commentators who describe my opinion as "a virtual plea to voters" and a "warning" to abortion rights advocates. Don DeBenedictis, Two Abortion Laws Struck Down, A.B.A.J., Nov. 1990, at 20; Neil Lewis, Pennsylvania's Abortion Restrictions Are Struck Down by a Federal Judge, N.Y. Times, Aug. 25, 1990, § 1, at 8. First, a fair reading of the opinion simply would not leave a reasonable person with knowledge of all the circumstances with the impression that I was personally encouraging voter activity of any kind. To the extent that these particular journalists described my opinion as taking such a stance, they mischaracterize and exaggerate the plain language therein. In any case, inflammatory language from the media is no measure of the reasonable person's impression. Simply put, the value of publicized statements like those cited above concerning an issue which defendants themselves describe as "among the most controversial and divisive issues in our national life today" lends little helpful guidance to the more important inquiry of whether the reasonable person with knowledge of all the circumstances would perceive bias.
C. Timeliness of Defendants' Motion
Plaintiffs strenuously argue that defendants' motion for disqualification should be denied because it is untimely. Plaintiffs point out that the language that forms the basis of defendants' motion was written nearly two and one half years ago. Further, plaintiffs charge, defendants did not raise the issue in post-trial proceedings before this Court or upon notice that this Court would serve as Special Master to review plaintiffs' petition for attorneys' fees.
Once a party seeking recusal knows of the facts on which recusal is based, he must make a timely motion to disqualify, or lose his right to do so. Schwartz v. University of Pennsylvania Hospital, No. 88-4865, 1992 U.S. Dist. LEXIS 7381, at *4 (E.D. Pa. May 4, 1992), citing Delesdernier v. Porterie, 666 F.2d 116, 121-23 (5th Cir.), cert. denied, 459 U.S. 839, 74 L. Ed. 2d 81, 103 S. Ct. 86 (1982). The Third Circuit, however, views the timeliness issue in this context as a good faith requirement. Smith v. Danyo, 585 F.2d 83, 85 (3d Cir. 1978).
The record in this action reflects that defendants' motion for disqualification is indeed belated. However, an earlier motion may have been premature and inappropriate, as it was not clearly foreseeable that this Court would be further involved in this case until after the remand from the Third Circuit. A finding that defendant's motion is untimely would require a careful and lengthy inquiry into the circumstances surrounding the post-trial proceedings of this case. Id. at 86. I find it unnecessary to conduct such an inquiry or to address the technical issue of the timeliness of defendants' motion at all, for as the above discussion reflects, the motion is deficient on the merits.
After careful consideration of the arguments of counsel and the facts and circumstances surrounding my opinion of August 24, 1990, I shall deny defendants motion for disqualification. A reasonable person with knowledge of all the circumstances would not be left with an impression of bias after reading that opinion. I acknowledge and share the grave concerns surrounding any appearance of bias in a case of such notoriety and importance, but the facts supporting defendants' motion simply fail to trigger those concerns.
An appropriate order follows.
Daniel H. Huyett, 3rd, Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 812 F. Supp. 541.
ORDER - February 1, 1993, Filed
January 29, 1993
Upon consideration of defendants' motion for disqualification, plaintiffs' response and for the reasons stated in the accompanying memorandum:
Defendants' motion to disqualify is DENIED.
IT IS SO ORDERED.
Daniel H. Huyett, 3rd, Judge