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PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V.

January 29, 1993

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, REPRODUCTIVE HEALTH AND COUNSELING CENTER, WOMEN'S HEALTH SERVICES, INC., WOMEN'S SUBURBAN CLINIC, ALLENTOWN WOMEN'S CENTER, and THOMAS ALLEN, M.D., Plaintiffs,
v.
ROBERT P. CASEY, N. MARK RICHARDS, ERNEST D. PREATE, and MICHAEL D. MARINO, Defendants.



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 JANUARY 29, 1993

 This case, which involves a constitutional challenge to numerous provisions of the 1988 and 1989 amendments to the Pennsylvania Abortion Control Act ("the amended Act"), 18 Pa. Cons. Stat. §§ 3201-3220, is back before this Court on remand from the Supreme Court of the United States and the Court of Appeals for the Third Circuit. Defendants contend that this Court has compromised the appearance of its impartiality by virtue of certain language contained in the opinion issued on August 24, 1990. They have accordingly moved that I disqualify myself from further proceedings pursuant to 28 U.S.C. § 455(a). For the reasons stated below, defendants' motion shall be denied.

 I. INTRODUCTION

 In Planned Parenthood v. Casey, 744 F. Supp. 1323 (E.D. Pa. 1990), I held many provisions of the amended Act unconstitutional and I permanently enjoined enforcement of those provisions. The Court of Appeals for the Third Circuit reversed in part and affirmed in part the judgment of this Court, holding all of the challenged provisions constitutional with the exception of the spousal notification provision. Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991). The Supreme Court in turn affirmed in part and reversed in part the judgment of the court of appeals, holding the challenged provisions constitutional with the exception of the spousal notification requirement and its related reporting requirements. Planned Parenthood v. Casey, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992).

 The case is now before this Court on remand for "such further proceedings as may be appropriate." Planned Parenthood v. Casey, 978 F.2d 74, 78 (3d Cir. 1992). "Such further proceedings" presently include consideration of plaintiffs' motion to reopen the record and defendants' motion to enforce the court of appeals' mandate and to partially dissolve the August 24, 1990 permanent injunction. Further, the court of appeals has appointed this Court as Special Master to review plaintiffs' petition for attorneys' fees.

 Defendants contend that certain language contained in this Court's opinion in Planned Parenthood v. Casey, 744 F. Supp. 1323 (E.D. Pa. 1990), has "created the impression that [my] heart is with the plaintiffs." Defendants' Brief in Support of Their Motion for Disqualification ("Defendants' Brief") at 10. According to defendants, I must disqualify myself and withdraw from further proceedings pursuant to 28 U.S.C. § 455(a), for if I remain on the case, "the outcome of this massive, important, and widely followed case would be shrouded with suspicion." Defendants' Brief at 11, citing Pfizer Inc. v. Kelly, 977 F.2d 764, 785 (3d Cir. 1992). Plaintiffs oppose defendants' motion on two principal grounds. First, plaintiffs contend that there is no reasonable appearance of partiality in this case, and second, plaintiffs argue that defendants' motion is inexcusably untimely.

 II. DISCUSSION

 A. The Standard for Disqualification Under 28 U.S.C. § 455(a)

 Section 455(a) of Title 28 of the United States Code 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. 28 U.S.C. § 455(a). On two recent occasions, the Third Circuit has addressed the issue of disqualification and clarified the legal standard governing withdrawal. In Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir. 1992), the court emphasized that "the polestar" governing disqualification is "impartiality and the appearance of impartiality." Id. at 98 (emphasis in original), quoting Lewis v. Curtis, 671 F.2d 779, 789 (3d Cir.), cert. denied, 459 U.S. 880, 74 L. Ed. 2d 144, 103 S. Ct. 176 (1982). In Pfizer Inc. v. Kelly, 977 F.2d 764 (3d Cir. 1992), the court explained further that Congress enacted section 455(a) to ensure that the public's perception of the judiciary remained positive by avoiding the harm to public confidence that would result from the appearance of bias, especially in high profile cases. Id. at 782.

 Defendants rely principally on the two cases cited above in support of their motion for disqualification. They urge that the strong language in my opinion has created an appearance of partiality, and that my withdrawal is therefore required pursuant to Haines and Pfizer. However, defendants omit an important factor in their discussion of the legal standard for disqualification as interpreted by the court of appeals. Although it is true that even the appearance of bias necessitates recusal, the Court "must determine whether a reasonable person, knowing all the acknowledged circumstances, might question the district judge's continued impartiality." Pfizer, 977 F.2d at 781 (emphasis added). In other words, the question of whether an appearance of bias exists centers on reasonableness, and "a judge must consider whether a reasonable person knowing all the circumstances would harbor doubts concerning the judge's impartiality." Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990).

 In light of this standard, I shall address defendants' motion by answering the following inquiry: Does the language in Planned Parenthood v. Casey, 744 F. Supp. 1323 (E.D. Pa. 1990), create an appearance of bias to a reasonable person knowing all the circumstances?

 B. Whether a Reasonable Appearance of ...


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