Hart v. McDermott

• Court: District Court, W.D. Washington
• Decided: July 19, 2023
• Docket: 2:23-cv-00503
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 CODY HART, DERRILL FUSSELL, CASE NO. C23-503 KEVIN EWING, TIMOTHY 11 GARRISON, STEVEN RINDAL, and ORDER DENYING MOTION TO KATHY LAFRENIERE, RECUSE 12 Plaintiffs, 13 v. 14 SKAGIT COUNTY SHERIFF 15 DONALD MCDERMOTT, SKAGIT COUNTY PROSECUTING 16 ATTORNEY RICHARD WEYRICH, COUNTY OF SKAGIT, and RLI 17 INSURANCE COMPANY, 18 Defendants. 19 20 This matter comes before the Court on Plaintiffs’ Motion to Recuse. (Dkt. No. 17.) 21 Having reviewed the Motion and the relevant record, the Court DENIES the Motion. 22 “[I]n the absence of a legitimate reason to recuse himself, ‘a judge should participate in 23 cases assigned.’” United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008) (quoting Maier v. 24 1 Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985)). But “a judge may not sit in cases in which his 2 ‘impartiality might reasonably be questioned.’” Id. (quoting 28 U.S.C. § 455(a)). “If it is a close 3 case, the balance tips in favor of recusal.” Id. 4 Plaintiffs rely on 28 U.S.C. § 455(a) for their position. Section 455(a) states that “[a]ny

5 justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding 6 in which his impartiality might reasonably be questioned.” The substantive standard for recusal 7 under Section 455 is “whether a reasonable person with knowledge of all the facts would 8 conclude that the judge’s impartiality might reasonably be questioned.” United States v. 9 Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (quoting United States v. Studley, 783 F.2d 934, 10 9349 (9th Cir. 1986)). Ordinarily, the alleged bias must stem from an “extrajudicial source.” 11 Liteky v. United States, 510 U.S. 540, 554-56 (1994). 12 The Court is not convinced that recusal is appropriate. Plaintiffs seek recusal given the 13 Court’s knowledge and involvement in another matter filed by Plaintiffs. (See Affidavit to 14 Motion to Recuse at 1 (Dkt. No. 32-1) (citing the Court’s involvement in Hart v. Wesen, 2:23-

15 cv-309.) First, Plaintiffs allege that the Court’s ruling in favor of the defendants in the other 16 matter shows “undeniable bias and prejudice.” (Affidavit at 1.) The Court previously issued an 17 order dismissing the case for lack of standing in Hart v. Wesen. But, ruling one way on a related 18 case does not represent bias on an issue presented in another case. And Plaintiffs fail to point to 19 any extrajudicial source to establish bias in their current case. 20 Second, Plaintiffs seek recusal on the theory that “Judge Pechman has personal 21 knowledge of disputed evidentiary facts concerning the proceedings in which evidence has been 22 referenced and now introduced as mandatory judicial notice.” (Affidavit at 1.) This appears to be 23 in reference to 28 U.S.C. § 455(b), which provides: “[A judge] shall also disqualify himself in

24 1 the following circumstances: (1) Where he has . . . personal knowledge of disputed evidentiary 2 facts concerning the proceeding.” Again, Plaintiffs’ assertion fails as there is no basis to 3 conclude that the Court has any “personal knowledge” of the facts presented in the present case 4 by its mere oversight of Plaintiffs’ other cases.

5 Lastly, Plaintiffs claim that Judge Pechman will be subpoenaed as a witness to testify to 6 alleged crimes that were committed before her. (Motion at 2.) Plaintiffs allege that Defense 7 Attorney Erik Pedersen committed a crime because he was not lawfully authorized to represent 8 the defendants in the other cases before the Court. (Affidavit at 1.) No evidence has been 9 submitted to sustain this claim and Plaintiffs’ mere belief that a crime has been committed does 10 not warrant recusal. For these reasons, the Court DENIES the Motion to Recuse. 11 In accordance with the Local Rules, this matter is referred to U.S. Chief District Judge 12 David G. Estudillo for review of Plaintiffs’ recusal request and this Court’s denial of that 13 request. 14 The clerk is ordered to provide copies of this order to all counsel.

15 Dated July 19, 2023. A 16 17 Marsha J. Pechman United States Senior District Judge 18 19 20 21 22 23 24