Baldi v. Brown, et al.

2004 DNH 133

• Court: District Court, D. New Hampshire
• Decided: September 13, 2004
• Docket: CV-04-206-SM
• Status: Published

Opinion

Baldi v . Brown, et a l . CV-04-206-SM 09/13/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John A . Baldi, Plaintiff

v. Civil N o . 04-206-SM Opinion N o . 2004 DNH 133 Ronald Brown, Gail Brown, Charles Russell, Gregory Bowen Town of Epsom, Defendants

O R D E R

John A . Baldi has sued various combinations of defendants in

eleven counts. Before the court is Baldi’s motion for recusal on

grounds of bias, prejudice, and abuse of authority. 28 U.S.C. §

144.

A party may invoke a statutory right to recusal of a federal

trial judge under certain circumstances. The applicable statute

provides:

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. 28 U.S.C. § 144. Moreover, “[t]o require disqualification, the

alleged bias or prejudice must be both ‘(1) personal, i.e.,

directed against a party, and (2) extrajudicial.’” United States

v . Kelley, 712 F.2d 8 8 4 , 889 (1st Cir. 1983) (quoting United

States v . Carignan, 600 F.2d 7 6 2 , 763 (9th Cir. 1979)).

Regarding the requirement that a judge’s alleged bias be

extrajudicial, “[f]acts learned by a judge while acting in his

judicial capacity cannot serve as a basis for disqualification on

account of personal bias.” Kelley, 712 F.2d at 889 (citations

omitted).

As noted, the affidavit of a party seeking recusal must be

“timely and sufficient.” Baldi’s affidavit is not timely. “A

section 144 affidavit is not timely unless filed ‘at the earliest

moment after [the movant acquires] knowledge of the facts

demonstrating the basis for such disqualification.’” United

States v . Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (quoting

United States v . Barnes, 909 F.2d 1059, 1071 (7th Cir. 1990))

(internal quotation marks omitted). In Sykes, the court held

that an affidavit was untimely when it was based upon remarks

2 made on June 1 2 , 1992, and was not filed until August 1 9 , 1992.

7 F.3d at 1330 (“Two months after the allegedly prejudicial

statement is certainly not ‘at the earliest possible moment’

after discovery of the prejudice.”) (citation omitted).

Similarly, in Green v . Branson, 108 F.3d 1296 (10th Cir. 1997),

the court held that an affidavit was untimely when it was based

on a ruling entered on September 2 6 , 1994, but was not filed

until November 1 , 1994. Id. at 1305. Here, Baldi had knowledge

of all the various “facts” alluded to in his affidavit at the

time he filed suit on May 2 9 , 2004. He knew no later than June

1 , 2004, that the case had been assigned to m e . Between July 8

and July 1 1 , he filed five responsive pleadings in this case.

Yet, he did not file his motion and affidavit until August 2 .

While the court of appeals for this circuit has yet to

address this precise issue, the standard set out in Sykes and

Green seems reasonable. A section 144 affidavit ought to be

filed promptly after the alleged grounds allegedly warranting

recusal are known to the filer. Here, Baldi did not file his

motion to recuse and supporting affidavit promptly after

acquiring the purported knowledge upon which his motion is based.

3 S o , initially, because Baldi’s motion is not timely, he is not

entitled to recusal.

Even if Baldi’s motion is deemed timely, however, it is

still legally insufficient. The evidence of bias Baldi posits

consists entirely of judicial rulings made in a previous case

over which I presided. His supporting affidavit asserts no

extrajudicial source for any knowledge he claims I have

concerning his alleged efforts to reveal so-called unlawful

actions by government officials. Thus, his affidavit does not

sufficiently allege any facts that would counsel, much less

require, recusal. Kelley, 712 F.2d at 889.

While it is always tempting for a judge to simply recuse

from cases, such as this, brought by frequent litigators with

growing reputations for asserting weak and difficult to manage

legal claims, nevertheless, a judge is as duty bound to sit when

recusal is not appropriate as to recuse when it is appropriate.

See Laird v . Tatum, 409 U.S. 8 2 4 , 837 (1972) (citations omitted).

4 Because Baldi’s motion for recusal (document n o . 22) is both

untimely and legally insufficient, it i s , with regret, denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 1 3 , 2004

cc: John A . Baldi Charles A . Russell, Esq.