In Re Maritimes & Northeast Pipeline, L.L.C.

349 F. Supp. 2d 175, 2004 U.S. Dist. LEXIS 28041

• Court: District Court, D. Massachusetts
• Decided: December 17, 2004
• Docket: CIV.A. 02-10941-WGY, CIV.A. 02-10980-WGY, CIV.A. 02-10982-WGY, CIV.A. 02-11047-WGY, CIV.A. 02-11050-WGY, CIV.A. 02-11054-WGY, CIV.A. 02-11066-WGY, CIV.A. 02-11107-WGY
• Status: Published

Opinion

ORDER OF RECUSAL

YOUNG, Chief Judge.

On May 23, 2002, Maritimes & Northeast Pipeline L.L.C. (“Maritimes”) filed the first of 78 related land condemnation actions involving the construction of a gas pipeline north of Boston. All of these cases were consolidated in this session of the Court, the first one having been randomly drawn to me. Maritimes failed to file the corporate disclosure statement required by Local Rule 7.3 in any of these 78 cases.

By late 2003, most of these cases had been resolved. A handful had gone to trial before advisory juries and the last had tried jury-waived on September 8, 2003. I recused myself from one such case because Verizon had a direct ownership interest in the land taken and I own a few Verizon shares derived from the breakup of AT & T, which stock had been given to me by my parents as a child. Only the six above-captioned cases were awaiting final judicial resolution by December 2003.

For the past few years, I have been the unpaid trustee of a trust established under the will of my late uncle. The trust beneficiaries are his children (my cousins). During the month of December 2003, acting on the advice of the trust’s financial advisor, I caused the trust to invest in 3,000 shares of Duke Energy Corp. (“Duke”) after checking the Court’s internal database to see if this caused any conflict with my judicial duties. (You can see where this is going). Thereafter, I duly caused the trust’s purchase of the Duke stock to be entered into the Court’s internal database and, in May, 2004, properly reported it on my 2003 financial disclosure statement as required by the Ethics in Government Act.

Now back to Court. On December 31, 2003 I denied the motion of Jack R. Pearl (“Mr.Pearl”), himself an affected landowner, seeking to intervene on behalf of another landowner. On February 27, 2004, I entered an order for judgment that disposed of the six above-captioned cases (one of which is Mr. Pearl’s), save for a single issue as to the precise description of the easement in docket no. 02-11107-WGY (the “Willowdale” case).

On March 9, 2004, Mr. Pearl duly appealed, thus clearly triggering the duty of this Court to enter the detailed findings and rulings as to valuation required by Fed.R.Civ.P. 52(a). No appeal has been taken in the other four cases so, as to them, nothing further is required of the Court.

This autumn I was informed by the Administrative Office of the United States Courts that Mr. Pearl, as is his right, had requested copies of my 2002 and 2003 financial disclosure statements. This is the first time in my session that a disgruntled litigant has made such a request. Not to worry, I thought, having scrupulously complied with all reporting requirements. (Right. Now, surely you can see the denouement).

On December 16, 2004, an angry Mr. Pearl presented himself at the public counter in the Office of the Clerk and informed Courtroom Deputy Clerk Elizabeth Smith that Maritimes was a “subsidiary” of Duke and — accurately—claimed “he [meaning me] has been trading in Duke’s stock while he’s been deciding my case.”

Apprised of this claim, a quick check of Maritimes’ website confirms that its stock is split among three co-venturers with Duke, a publicly traded company, owning approximately 77% of Maritimes. Meanwhile, a call from Ms. Smith to defense counsel at my direction inquiring about any such relationship elicited a (woefully tardy) corporate disclosure statement.

As I conceive it, my duty is clear. I recuse myself forthwith from any further proceedings in the above-captioned cases. I do so promptly as a matter of prudence and discretion, without researching whether recusal is mandatory. My reasoning is simple: Had Maritimes filed the corporate disclosure statement as required by Local Rule 7.3, I never would have caused the trust to make this investment. 1 Having done so inadvertently, I must recuse myself at once. I do so.

I am not insensitive to the practical problems this causes.

In docket no. 02-10980-WGY, Mr. Pearl’s case, I no longer have jurisdiction because the matter is on appeal. Unfortunately, it may now have to be completely re-tried since the admitted absence of de tailed findings and rulings will prevent adequate appellate review. 2 I have thus considered selling the stock and proceeding pursuant to the safe harbor provision of 28 U.S.C. § 455(f). Wholly apart from my obligations as trustee, I have decided not to seek that safe harbor. It is my personal view that section 455(f) prudentially ought to be reserved for those situations where all parties desire continued judicial action by the same judicial officer. Here, Mr. Pearl manifestly does not, and Mari-times is culpable in that it utterly failed to inform the Court of the data it was required to disclose. This is hardly the ground on which to build a respected judicial decision.

In docket no. 02-11107-WGY, the Wil-lowdale matter, the situation is somewhat different. Here, all parties may wish me to continue to conclusion. Therefore, should both parties jointly move for my continued involvement within 80 days of this order, I will research whether disqualification is mandatory. Otherwise, this case will promptly be re-drawn.

The remaining four cases have settled or otherwise gone to judgment and the time for appeal has passed long since. As I have recused myself, any further proceedings in any of these matters shall be before another judge.

SO ORDERED.

1 . Before I accepted this family duty, I had fully informed the trust beneficiaries of the constraints imposed on me as a sitting judge.

2 . There is, of course, a jury verdict here as well as a complete transcript, and. both judge and jury took a comprehensive view of the site. Moreover, if the Court of Appeals considers my conscience too tender on the point, it may call for my findings and rulings (presently in draft form), and I will deliver them forthwith.