DECISION AND ORDER GRANTING PLAINTIFF’S AFFIDAVIT FOR DISQUALIFICATION AND REASSIGNMENT OF CASE AND NOTICE TO COUNSEL
HAUK, District Judge.
This matter has now come on for hearing in the above-entitled Court on Monday, June 16, 1980, at 1:00 p. m. upon plaintiff’s Motion for Recusal, pursuant to 28 U.S.C.
§ 144»; 28 U.S.C. § 455(a)
,
and Canon 3 C of the Code of Judicial Conduct
; the Affidavits of Muriel Yassky,
and Rebecca Chambers,
and the Certificate of Good
Faith of Mark Vincent Kaplan, Esq.,
filed May 16, 1980, together with points and authorities; and arguments of counsel; and the Court having considered all the afore
said now makes its Order and Decision granting said Motion for Recusal.
FINDINGS AND CONCLUSIONS
Since they are based upon 28 U.S.C. §§ 144 and 455 and Code of Judicial Conduct, Canon 3 C, we are required to examine plaintiff’s Affidavits and Certificate to determine if they meet the tests required by the United States Code and said Canon, namely, those of (1) timeliness and (2) legal sufficiency. If they do, then the factual allegations contained in the Affidavit
must
be taken as true and the Court has no power or authority to contest in any way whatsoever the necessary acceptance of truthfulness of the facts alleged, even though the Court may be aware of facts which would indicate clearly the falsity of any such allegations.
Berger v. United States,
255 U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481 (1921);
Botts v. United States,
413 F.2d 41 (9th Cir. 1969);
United States v. Tropiano,
418 F.2d 1069 (2d Cir. 1969);
Lyons v. United States,
325 F.2d 370 (9th Cir. 1963),
cert. den.
377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964).
See also: United States v. Zarowitz,
326 F.Supp. 90, 91 (C.D.Cal.1971),
United States v. Zerilli,
328 F.Supp. 706, 707 (C.D.Cal.1971),
Spires et al. v. Hearst,
420 F.Supp. 304, 306-307 (C.D.Cal.1976),
State of California et al. v. Kleppe,
431 F.Supp. 1344 (C.D.Cal.1977), and
Hayes v. National Football League et al.,
463 F.Supp. 1174 (C.D.Cal.1979).
Cf.: Mavis v. Commercial Carriers, Inc.,
408 F.Supp. 55, 58 (C.D.Cal.1975).
While perhaps not essential, it does seem to us appropriate, that we should now affirm that the Judge herein does not have, nor did he ever have, any personal bias or prejudice in the slightest degree for or against any of the parties to the case, cause and proceeding herein, and more particularly, does not now have and never did have any such personal bias or prejudice in the slightest degree against the Church of Scientology, plaintiff herein. Nor has the Judge ever knowingly or unknowingly given any cause for allegations of any such alleged personal bias or prejudice, or belief therein or suspicion thereof.
At the outset it might be argued with some possible justification that the plaintiff’s Affidavits and Certificate are not “timely” within the meaning of 28 U.S.C. § 144, since they were not filed until May 16, 1980, whereas the action herein was transferred to this Court from the Hon. Warren J. Ferguson on December 27, 1979. However, it should be noted that this Court’s Clerk received from plaintiff’s counsel, Mark Vincent Kaplan, Esq., a letter addressed to the Court dated February 4, 1980,
requesting the Court to recuse itself
from the matter herein. The Clerk’s response to this request was made in a letter from Law Clerk Brian A. Sun to Mr. Kaplan, dated February 11, 1980,
indicating to
Mr. Kaplan that this Court would not act upon his letter because his
ex-parte
communication with the Court was inconsistent with and in violation of Local Rule 1.8 of the Rules of the United States District Court, Central District of California.
While the Court, therefore, has some doubt about the validity of measuring “timeliness” by the five week interval which elapsed between the date of transfer of this case from Judge Ferguson and Mr. Kaplan’s February 4, 1980, letter, rather than by the five month interval between Judge Ferguson’s transfer and the filing of the within Motion, the Court nevertheless finds that the herein Affidavits and Certificate were timely, and Mr. Kaplan’s letter-writing efforts to bring this Motion to the attention of the Court, while not made in accordance with the Local Rules and accepted practice, were apparently made in good faith and sufficiently set forth legal “timeliness.”
Now, the next question is whether or not the Affidavit and Certificate are “legally sufficient” within the meaning of the same statutory sections and Canon. Certainly they appear to be and the Court so finds. They are in proper form; they assert alleged facts and not just conclusions of law; and so, in line with the cases the Court has previously cited, they are legally sufficient. The only question left is whether facts are alleged which require the Judge to disqualify or recuse himself under 28 U.S.C. § 455(a) and Code of Judicial Conduct, Canon 3 C.
As stated earlier, the Court recognizes that the factual allegations contained in the Affidavit
must
be taken as true and the Court has no power or authority to contest in any way whatsoever the necessary acceptance of truthfulness of the facts alleged, even though the Court may be aware of facts which would indicate clearly the falsity of any such allegations. In that regard, and for the record, the Court strongly takes issue with the alleged facts asserted in the Affidavits of Muriel Yassky and Rebecca Chambers, and the Certificate of Good Faith of Mark Vincent Kaplan, Esq.
The so-called “elevator incident” referred to in plaintiff’s moving papers did not occur exactly as alleged.
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DECISION AND ORDER GRANTING PLAINTIFF’S AFFIDAVIT FOR DISQUALIFICATION AND REASSIGNMENT OF CASE AND NOTICE TO COUNSEL
HAUK, District Judge.
This matter has now come on for hearing in the above-entitled Court on Monday, June 16, 1980, at 1:00 p. m. upon plaintiff’s Motion for Recusal, pursuant to 28 U.S.C.
§ 144»; 28 U.S.C. § 455(a)
,
and Canon 3 C of the Code of Judicial Conduct
; the Affidavits of Muriel Yassky,
and Rebecca Chambers,
and the Certificate of Good
Faith of Mark Vincent Kaplan, Esq.,
filed May 16, 1980, together with points and authorities; and arguments of counsel; and the Court having considered all the afore
said now makes its Order and Decision granting said Motion for Recusal.
FINDINGS AND CONCLUSIONS
Since they are based upon 28 U.S.C. §§ 144 and 455 and Code of Judicial Conduct, Canon 3 C, we are required to examine plaintiff’s Affidavits and Certificate to determine if they meet the tests required by the United States Code and said Canon, namely, those of (1) timeliness and (2) legal sufficiency. If they do, then the factual allegations contained in the Affidavit
must
be taken as true and the Court has no power or authority to contest in any way whatsoever the necessary acceptance of truthfulness of the facts alleged, even though the Court may be aware of facts which would indicate clearly the falsity of any such allegations.
Berger v. United States,
255 U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481 (1921);
Botts v. United States,
413 F.2d 41 (9th Cir. 1969);
United States v. Tropiano,
418 F.2d 1069 (2d Cir. 1969);
Lyons v. United States,
325 F.2d 370 (9th Cir. 1963),
cert. den.
377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964).
See also: United States v. Zarowitz,
326 F.Supp. 90, 91 (C.D.Cal.1971),
United States v. Zerilli,
328 F.Supp. 706, 707 (C.D.Cal.1971),
Spires et al. v. Hearst,
420 F.Supp. 304, 306-307 (C.D.Cal.1976),
State of California et al. v. Kleppe,
431 F.Supp. 1344 (C.D.Cal.1977), and
Hayes v. National Football League et al.,
463 F.Supp. 1174 (C.D.Cal.1979).
Cf.: Mavis v. Commercial Carriers, Inc.,
408 F.Supp. 55, 58 (C.D.Cal.1975).
While perhaps not essential, it does seem to us appropriate, that we should now affirm that the Judge herein does not have, nor did he ever have, any personal bias or prejudice in the slightest degree for or against any of the parties to the case, cause and proceeding herein, and more particularly, does not now have and never did have any such personal bias or prejudice in the slightest degree against the Church of Scientology, plaintiff herein. Nor has the Judge ever knowingly or unknowingly given any cause for allegations of any such alleged personal bias or prejudice, or belief therein or suspicion thereof.
At the outset it might be argued with some possible justification that the plaintiff’s Affidavits and Certificate are not “timely” within the meaning of 28 U.S.C. § 144, since they were not filed until May 16, 1980, whereas the action herein was transferred to this Court from the Hon. Warren J. Ferguson on December 27, 1979. However, it should be noted that this Court’s Clerk received from plaintiff’s counsel, Mark Vincent Kaplan, Esq., a letter addressed to the Court dated February 4, 1980,
requesting the Court to recuse itself
from the matter herein. The Clerk’s response to this request was made in a letter from Law Clerk Brian A. Sun to Mr. Kaplan, dated February 11, 1980,
indicating to
Mr. Kaplan that this Court would not act upon his letter because his
ex-parte
communication with the Court was inconsistent with and in violation of Local Rule 1.8 of the Rules of the United States District Court, Central District of California.
While the Court, therefore, has some doubt about the validity of measuring “timeliness” by the five week interval which elapsed between the date of transfer of this case from Judge Ferguson and Mr. Kaplan’s February 4, 1980, letter, rather than by the five month interval between Judge Ferguson’s transfer and the filing of the within Motion, the Court nevertheless finds that the herein Affidavits and Certificate were timely, and Mr. Kaplan’s letter-writing efforts to bring this Motion to the attention of the Court, while not made in accordance with the Local Rules and accepted practice, were apparently made in good faith and sufficiently set forth legal “timeliness.”
Now, the next question is whether or not the Affidavit and Certificate are “legally sufficient” within the meaning of the same statutory sections and Canon. Certainly they appear to be and the Court so finds. They are in proper form; they assert alleged facts and not just conclusions of law; and so, in line with the cases the Court has previously cited, they are legally sufficient. The only question left is whether facts are alleged which require the Judge to disqualify or recuse himself under 28 U.S.C. § 455(a) and Code of Judicial Conduct, Canon 3 C.
As stated earlier, the Court recognizes that the factual allegations contained in the Affidavit
must
be taken as true and the Court has no power or authority to contest in any way whatsoever the necessary acceptance of truthfulness of the facts alleged, even though the Court may be aware of facts which would indicate clearly the falsity of any such allegations. In that regard, and for the record, the Court strongly takes issue with the alleged facts asserted in the Affidavits of Muriel Yassky and Rebecca Chambers, and the Certificate of Good Faith of Mark Vincent Kaplan, Esq.
The so-called “elevator incident” referred to in plaintiff’s moving papers did not occur exactly as alleged. On July 19, 1979, upon Judge Hauk’s driving into the Courthouse garage, Federal Protective Service Contract Guard Officer Jennifer Jackman, guarding the entrance to the Main Street Garage, told Judge Hauk that a number of stickers had been found pasted to the front door of the building, the sentry box on the Spring Street Parking level, and elsewhere, label-ling the United States Marshals as assassins. She reported to Judge Hauk that she had also heard about an episode of a lady found wandering in a Judge’s private hallway.
Acting in his capacity as Vice Chairman of the Security Committee, and Acting Chairman in Judge Firth’s absence, and carrying out the duties delegated to him by the mandatory and unanimous Order of all
of the Judges of this Federal District Court, Judge Hauk proceeded to inquire further into these reports. He checked with the United States Marshal’s Office who reported that they had heard of the same incidents and told him that copies of the label were in the Federal Protective Service Office on the Main Street level. Judge Hauk proceeded there and saw one of the labels, green background with black printing, and the legend:
“U. S. Marshals Are Assassinating Governments Witness.”
Judge Hauk then went out into the Main Street lobby area to discuss with the Federal Protective Service Contract Guard there, Walter H. Bonner, whether or not he (Bonner) had seen any unusual or improper activities with respect to the pasting of the labels, the use, or misuse, of the Main Street garage and Spring Street parking area by any unauthorized persons, or any other activities indicating any breach of security in the Courtrooms or Courthouse. At that time, Judge Hauk noticed, standing between himself and the officer, near the officer’s desk, and in the space immediately adjacent to the elevators, a young lady, apparently endeavoring to eavesdrop upon Judge Hauk’s conversation with the Officer. When Judge Hauk looked at her, she turned her eyes up and pretended not to be listening or interested in what he was saying.
Judge Hauk went over and asked her what she was doing in the building and she replied “Oh, nothing in particular.” He asked her again what she was doing, and she again said “Nothing in particular.” The Judge asked her name, and she refused to give it to him, and said she was going upstairs “for a cup of coffee.”
Whereupon Judge Hauk asked her to come over to the officer’s desk, and escorted her to said desk to answer a few questions. She came over and Judge Hauk asked her name, address and telephone number, requesting the Officer to write them down as she gave them — Muriel Yassky, 5959 Franklin Avenue, Apt. 407, Hollywood, California 90028, phone no. 462-0135. Judge Hauk further asked her for her I.D., which she said was “upstairs in the waiting room.” At that point, the Chief Deputy Marshal, James L. Propotnick, appeared on the scene and Judge Hauk asked him to go with the young lady to the waiting room and check out the I.D. she mentioned. At no time did Judge Hauk ever state that Ms. Yassky should be “slapped in irons” if she resisted the Marshals.
Despite the problems the Court has with the factual allegations contained in plaintiff’s motion, and despite the Court’s firm recollection and conviction that the allegations are false, it feels compelled and bound to follow the more prudent course of granting the plaintiff’s Motion for Recusal. Canon 3 C(l) and 28 U.S.C. § 455(a) mandate that a Judge shall disqualify himself whenever
“his impartiality might reasonably be questioned.”
The Court herein finds that plaintiff’s Motion for Recusal, while indeed false and erroneous in its allegations, is based upon what Ms. Yassky and plaintiff’s counsel apparently feel is reasonable. Moreover, it has been said in some cases and by some authorities that recusal should be granted, pursuant to the aforementioned Canon 3 C(l) of the Code of Judicial Conduct, and 28 U.S.C. § 455(a), in such a situation, even when the Court is in doubt as to the “reasonableness” of an affiant’s belief. This conclusion is reached on the basis of the Court’s recognition of the sensitive nature of the case itself and the principles underlying the pertinent sections of the United States Code and the Code of Judicial Conduct, as well as other relevant
factors governing Judicial disqualifications, having in mind that when in doubt the Court should resolve the issue in favor of the party seeking recusal.
E. g. Mims v. Shapp,
541 F.2d 415, 417 (3d Cir. 1976);
Hodgson v. Liquor Salesmen’s Union,
444 F.2d 1344, 1348 (2d Cir. 1971). Of course, this does not constitute any finding or conclusion that the plaintiff’s allegations are factually true or have any real substantive merit, nor does it have any bearing whatsoever upon the merits of the basic cause of action.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. That the undersigned Judge does hereby disqualify and recuse himself from any and all further matters in the within case, cause and proceeding, pursuant to 28 U.S.C. § 455(a) and Canon 3 C(l) of the Code of Judicial Conduct, as amended to date, and pursuant, of course, also, to the Affidavits and Certificate filed herein by and on behalf of the plaintiff;
2. That the within case, cause and proceeding be and the same hereby is returned to the Clerk for random transfer and reassignment by the Clerk to another Judge of this District Court, Central District of California, in accordance with the applicable Rules and Orders of this Court, particularly General Order No. 104, filed January 18, 1971, Part Two, Section One, Paragraph I; and
3. That the Clerk serve copies of this Decision and Order forthwith by United States mail on counsel for all parties appearing in this case, cause and proceeding.