Wait. What's wrong with this picture?
Judge Snow was an Arizona COA judge in 2008. He worked in the same building as the defendants in this federal suit! Presumably he knows them all by sight and on a first name basis. Presumably, they are all his friends. He should have recused from the onset of this case.
He didn't. Hence, this motion.
Pursuant to 28 U.S.C. § 455 (a) & (b)(1) and Canon 3(C)(1)(a) of the Code of Judicial Conduct, plaintiff makes a timely motion for Judge G. Murray Snow to disqualify himself from further participation in this action.
Because this motion alleges bias, and because there are rulings pending before Judge Snow which would be forever tainted if ruled on before this one, plaintiff requests the Court prioritize this instant motion to the top of the stack, expediting it before those pending.
MEMORANDUM AND POINTS OF AUTHORITIES
While researching his previous motion, pro se plaintiff just learned that Judge Snow was a judge in the Arizona Court of Appeals until 2008. (Per YES ON PROP 200 v. Napolitano, 215 Ariz. 458, 160 P.3d 1216 and Exhibit 1.) As Judge Snow is aware, he worked with—and personally knows—at least four of the five Justice defendants. I submit Exhibits 2, 3, 4 and 5 for the (appellate) record and for the public's edification.
In fact, when he was an Arizona judge, Judge Snow worked in the same building in Phoenix with three of the Justice defendants. It is reasonable to presume he knew them then—and still knows them now—by sight and on a first name basis. While the fourth Justice defendant was a member of the Arizona Court of Appeals in Tucson at the time, it is reasonable to presume that Judge Snow also worked with him on occasion and presumably knows him by sight and on a first name basis too.
Plaintiff has not taken the time to research, but presumes it is easy to discover in which committees Arizona COA Judge Snow worked along side any four of the five Justice defendants. (If not all five.) It is reasonable for the public to presume Judge Snow went on occasional junkets with them. It is reasonable for the public to presume Judge Snow may even see defendants at Christmas parties and/or other social events, whether he still does or not.
Now, both 28 U.S.C. § 455 and Canon 3 of the Code of Conduct require "A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which the judge has a personal bias or prejudice concerning a party . . . "
Clearly, working with and personally knowing four of the five Justice defendants constitutes a "personal bias." Clearly the public watching this case can reasonably question Judge Snow's impartiality. The defendants are Judge Snow’s close acquaintances, if not friends.
Chief Supreme Court Justice Roberts observed ". . . there are a number of factors that could give rise to a probability or appearance of bias: friendship with a party or lawyer, prior employment experience, . . ." etc.
While he said "We have never held that the Due Process Clause requires recusal for any of these reasons . . . " he acknowledges ". . . they could be viewed as presenting a probability of bias.” Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009). This case is already a case of first impression. It may set yet another precedent here if Judge Snow chooses to not recuse.
Regardless of whether Judge Snow feels he's biased or not, that is not the test. As Justice Scalia said, "what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal [i]s required whenever 'impartiality might reasonably be questioned.'" Liteky v. United States, 510 U.S. 540 (1994).
Consistent with this, regarding vacature, the Ninth Circuit has noted "the unfairness and expense which results from [delayed] disqualification can be avoided in the future only if each judge fully accepts the obligation to disqualify himself in any case in which his impartiality might reasonably be questioned." Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991) at 735-36. This is such a case.
NO DUTY TO SIT
Lest the Court wrongly invoke it, there is no "duty to sit," strong or otherwise. This doctrine was changed by Congress more than 35 years ago, in 1974. Citing the Federal Judicial Center's Recusal: Analysis of Case Law, (Exhibit 6, p2), "The legislative history made it clear that in revising the statute [§ 455], Congress wished to remove the 'duty to sit.'"
Chief Judge Kozinski demonstrated this fact when he recused himself sua sponte in his infamous pornography trial. (Exhibit 7.) Judge Snow should follow this lead.
NO HARM
This case is still in its infancy. There will be no harm or delay to defendants by assigning another judge at this time. In fact, since it is only plaintiff suffering a constitutional deprivation, only I will be harmed by delay. Consequently, defendants should not be opposed to this motion to disqualify Judge Snow . . . unless of course, they see Judge Snow as their friend. In which case they will vigorously oppose this motion.
Given that pro se plaintiff just now learned of Judge Snow's conflict of interest, this is the absolute earliest possible time plaintiff could have brought this good faith motion.
CONCLUSION
Given the above, in the interest of justice, judicial economy, and for the sake of public confidence in the judiciary, Judge Snow must recuse from this action. There are other federal judges in this District who do not have a history of past relationships with defendants who can hear this case without any appearance of impropriety.
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