Hauptmann v. Wilentz

555 F. Supp. 28, 1982 U.S. Dist. LEXIS 17304
CourtDistrict Court, D. New Jersey
DecidedJuly 23, 1982
DocketCiv. No. 81-3177
StatusPublished
Cited by4 cases

This text of 555 F. Supp. 28 (Hauptmann v. Wilentz) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hauptmann v. Wilentz, 555 F. Supp. 28, 1982 U.S. Dist. LEXIS 17304 (D.N.J. 1982).

Opinion

OPINION

LACEY, District Judge.

Plaintiff has moved for my recusal under 28 U.S.C. § 455. The motion is grounded upon an alleged appearance of impropriety and bias due to my prior associations with Harold Fisher, Esq., a partner in the law firm of Shanley & Fisher, Newark, New Jersey, and Ronald S. Diana, Esq., counsel for the defendant The Hearst Corporation and a former associate attorney at Shanley & Fisher. In support of the motion plaintiff has filed the certification of her attorney, Robert R. Bryan, Esq., as well as her own certification and affidavit. The grounds urged are as follows.

[30]*30Plaintiff states that I was formerly a member of the law firm of Shanley & Fisher. Additionally, plaintiff asserts that Mr. Fisher actively participated in the prosecution of plaintiff’s late husband, Richard Hauptmann, in 1934 through 1935. It is contended by plaintiff that Mr. Fisher helped draft the indictment, was present throughout the trial, conducted research during the prosecution and participated in writing the State’s appellate brief. Such activity, plaintiff submits, “relates directly to the very nucleus of the present action.” Motion of Plaintiff for Disqualification, filed July 12, 1982, at ¶ 2.

As for Mr. Diana, plaintiff contends that he was employed by the Shanley & Fisher firm from 1958 until 1960 and that during that period he worked on various matters under my direction.

Plaintiff’s motion contains another aspect. Plaintiff contends that because this case is

recognized as the ‘Trial of the Century’ and was the largest and most notorious trial in the history of New Jersey, [virtually no judge in New Jersey is without at least the appearance of prejudice, if not actual bias, due to the significance of the case. It is believed, based upon information secured through a continuing investigation, that it is very doubtful a judge can be selected from within New Jersey without the appearance of impropriety. It has been ascertained that due to the tremendous notoriety of the case .. . few members of the New Jersey legal community in positions of authority have not had close association with various individuals involved in the prosecution of the Hauptmann case.

Motion of Plaintiff for Disqualification, filed July 12, 1982, at ¶ 5.

Based upon the foregoing, plaintiff claims that an appearance of impropriety exists if I continue to preside over this matter.

28 U.S.C. § 455 provides in pertinent part as follows:

(a) Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it. . . .

28 U.S.C. § 455 (Cum.Supp.1982) (emphasis added). Section 455(a) establishes a general standard for disqualification and Section 455(b)(2) contains a specific instance which mandates disqualification. In Re: International Business Machines, 618 F.2d 923, 927-28 (2d Cir.1980); Tilewick, Decisions Construing the Judicial Disqualification Statute, Federal Judicial Center Staff Paper, November 1977, at 4.

As a result of this court’s prior association with Messrs. Fisher and Diana, plaintiff states, this court’s “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Prior to 1974, a judge was required to disqualify himself if he believed, in his own opinion, that it was improper to preside over the matter. This subjective test was changed in 1974 when the focus of § 455 was changed to an objective standard. See Roberts v. Bailar, 625 F.2d 125, 128-29 (6th Cir.1980). Thus, the standard now employed is

whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of the reasonable man.

United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977). See United States v. Martorano, 620 F.2d 912 (1st Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980). Phrased another way, the standard “asks what a reasona[31]*31ble person knowing all the relevant facts would think about the impartiality of the judge.” Roberts v. Bailar, supra, 625 F.2d at 129.

This general standard contained in § 455(a) is not intended to be an invitation for judges to freely disqualify themselves whenever their impartiality is questioned on any ground. Testimony on this issue was given at the hearings before the House Subcommittee on the bill which became the new Section 455 and is reflective of the legislators’ intent:

Prof. Thode. [T]he longer the judge is on the bench, the less the likelihood that the general standard [of Canon 3(c)(1), which became 28 U.S.C. § 455(a)] will require his disqualification because of his former association [as former partner or former associate with a lawyer appearing before him].

Hearing on S. 1064 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 93rd Cong., 1st Sess. 100 (1973) (remarks of Professor E. Wayne Thode, reporter for the ABA Committee on Standards of Judicial Conduct). Similarly, with regard to the general standard, John P. Frank, Esq., rendered the following testimony:

Mr. Frank. I want to make loud and clear for purposes of this record, because I assume that this record may have importance for many, many years in the future, that this does not mean that judges are going to be casually getting off the bench or that somebody can march into a judge and say, ‘Well, I just don’t feel comfortable with you. I wish you would go away. I question your impartiality.’ This is not to happen at all.
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Bluebook (online)
555 F. Supp. 28, 1982 U.S. Dist. LEXIS 17304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hauptmann-v-wilentz-njd-1982.