Spires v. Hearst Corp.

420 F. Supp. 304
CourtDistrict Court, C.D. California
DecidedSeptember 20, 1976
Docket75-4338-AAH to 75-4341-AAH and 76-1343-AAH
StatusPublished
Cited by7 cases

This text of 420 F. Supp. 304 (Spires v. Hearst Corp.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spires v. Hearst Corp., 420 F. Supp. 304 (C.D. Cal. 1976).

Opinion

HAUK, District Judge.

This matter has come on for hearing in the above entitled Court on Monday, September 20, 1976, upon the plaintiffs’ “Motion For Order Disqualifying The Honorable A. Andrew Hauk; Affidavits of Plaintiffs, Certificate of Good Faith, and Memorandum of Points and Authorities in Support Thereof” filed herein on August 13, 1976, and the defendant’s “Memorandum In Response To Plaintiffs’ Motion For Order Disqualifying The Honorable A. Andrew Hauk” filed September 2, 1976, before the said A. Andrew Hauk, United States District Judge, to whom the five eases herein were assigned and consolidated pursuant to the rules, regulations and orders of this United States District Court for the Central District of California and particularly General Order No. 104 and Local Rules 2(a) and 2(g) — assignment of cases by lot and consolidation of cases under the ‘(low number” rule.

After full consideration of said pleadings, the entire files and records herein, in all of the consolidated cases, and good cause appearing, the aforesaid Judge now makes and enters his Findings, Conclusions and Order as follows:

FINDINGS AND CONCLUSIONS

Plaintiffs’ Motion is based upon 28 U.S.C. 144 1 and 455(a). 2 Under these stat *306 utes it is necessary for us to examine the Affidavits of the plaintiffs’ alleging personal bias and prejudice, or at least the appearance thereof, and the Certificate of Good Faith of their counsel, to determine if they meet the tests required, namely, those of timeliness and legal sufficiency. If they do then the factual allegations contained in the Affidavits 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) and United States v. Zerilli, 328 F.Supp. 706, 707 (C.D.Cal.1971). Cf.: Mavis v. Commercial Carriers, Inc., 408 F.Supp. 55, 58 (C.D.Cal.1975).

Before examining and analyzing these Affidavits however, it is perhaps appropriate for us to affirm that the Judge herein does not have, nor did he ever have any such alleged personal bias or prejudice in the slightest degree for or against any of the parties to these cases, causes and proceedings herein, and more particularly does not now have and never did have any such alleged personal bias or prejudice in the slightest degree against any of the plaintiffs herein, singly or collectively. Nor has the Judge ever knowingly or unknowingly given any cause for any such alleged personal bias or prejudice.

The Affidavits of all of the plaintiffs are absolutely identical, except for the fact that though the Affidavits of plaintiffs Spires, Schminke, Robinson, and Ermi (C.D.Cal. Nos. 75-4338-AAH, 75-4339-AAH, 75-4340-AAH and 75-4341-AAH) state that their actions were filed December 31, 1975, before the allegedly prejudicial newspaper article attached as Exhibit A to each Affidavit was published on April 11, 1976; nevertheless the Affidavit of plaintiff De Roche states that his action was filed on April 26, 1976, after the publication of the newspaper article on April 11,1976. Therefore, we include herewith as Appendix A only the Affidavit of plaintiff Spires, and its Exhibit A, along with counsel’s Certificate of Good Faith as Appendix B.

While it might be argued with some possible justification that the Affidavits and Certificate of Good Faith are not “timely” within the meaning of 28 U.S.C. 144, since they were not filed until the Motion for Disqualification was filed on August 13, 1976, whereas four of the actions were filed in December 1975 and one in April 1976, it appears conclusive, and the Court so finds that the allegations of the Affidavits sufficiently set forth a legal “timeliness.” All of the Affidavits set forth that “ . . . since no proceedings have yet been conducted before Judge Hauk in my lawsuit, and since the only discovery taken to date in my lawsuit has been by my counsel on my behalf, I request that Judge Hauk disqualify himself . .” Not only must I take these allegations as true, as heretofore pointed out, but as a matter of fact, they are true. And so the Court finds that the Affidavits and Certificate of Good Faith were and are “timely” within the meaning of 28 U.S.C. 144.

That the Affidavits are “legally sufficient” within the meaning of the same statute just as readily appears. They are all in proper form, they assert facts and not merely conclusions, and so they are legally sufficient. The only question left is whether they allege facts which require the Judge to disqualify himself under 28 U.S.C. 455(a). Each Affidavit attaches as Exhibit A a copy of a feature article written about the Judge and published by the defendant in the Los Angeles Herald Examiner on April 11, 1976. *307 This feature article, it is alleged in each Affidavit, “purports to reveal in a very complimentary fashion the personal and professional background of the Honorable A. Andrew Hauk and it states that Judge Hauk was nominated to the United States Ski Hall of Fame by Burt Sims, the ski writer for the Los Angeles Herald Examiner.” These facts not only are accepted as true, but, as the Judge knows, are actually true.

Furthermore, each Affidavit alleges that: “Given the nature of this article, I feel very strongly that an appearance of impropriety has been created here which causes me and which will cause others to have reasonable doubts concerning Judge Hauk’s impartiality in dealing with my lawsuit.” These alleged facts, while unknown to the Judge, must be accepted as true.

Turning now to 28 U.S.C. 455(a), it is conclusive that the Court cannot question the fact that the Judge’s impartiality “might reasonably be questioned.” In fact, it has reasonably been questioned by each of the plaintiffs in their respective Affidavits.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re United States of America
666 F.2d 690 (First Circuit, 1981)
Church of Scientology of Cal. v. Cooper
495 F. Supp. 455 (C.D. California, 1980)
United States v. Conforte
457 F. Supp. 641 (D. Nevada, 1978)
Rademacher v. City of Phoenix
442 F. Supp. 27 (D. Arizona, 1977)
Smith v. Pepsico, Inc.
434 F. Supp. 524 (S.D. Florida, 1977)
State of Cal. v. Kleppe
431 F. Supp. 1344 (C.D. California, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
420 F. Supp. 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spires-v-hearst-corp-cacd-1976.