Baldi v . Brown, et a l . CV-04-206-SM 09/13/04
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John A . Baldi,
Plaintiff
v. Civil N o . 04-206-SM
Opinion N o . 2004 DNH 133
Ronald Brown, Gail Brown,
Charles Russell, Gregory Bowen
Town of Epsom,
Defendants
O R D E R
John A . Baldi has sued various combinations of defendants in
eleven counts. Before the court is Baldi’s motion for recusal on
grounds of bias, prejudice, and abuse of authority. 28 U.S.C. §
144.
A party may invoke a statutory right to recusal of a federal
trial judge under certain circumstances. The applicable statute
provides:
Whenever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit
that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed no
further therein, but another judge shall be assigned to
hear such proceeding.
28 U.S.C. § 144. Moreover, “[t]o require disqualification, the
alleged bias or prejudice must be both ‘(1) personal, i.e.,
directed against a party, and (2) extrajudicial.’” United States
v . Kelley,
712 F.2d 8 8 4 , 889 (1st Cir. 1983) (quoting United
States v . Carignan,
600 F.2d 7 6 2 , 763 (9th Cir. 1979)).
Regarding the requirement that a judge’s alleged bias be
extrajudicial, “[f]acts learned by a judge while acting in his
judicial capacity cannot serve as a basis for disqualification on
account of personal bias.” Kelley,
712 F.2d at 889 (citations
omitted).
As noted, the affidavit of a party seeking recusal must be
“timely and sufficient.” Baldi’s affidavit is not timely. “A
section 144 affidavit is not timely unless filed ‘at the earliest
moment after [the movant acquires] knowledge of the facts
demonstrating the basis for such disqualification.’” United
States v . Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (quoting
United States v . Barnes,
909 F.2d 1059, 1071 (7th Cir. 1990))
(internal quotation marks omitted). In Sykes, the court held
that an affidavit was untimely when it was based upon remarks
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made on June 1 2 , 1992, and was not filed until August 1 9 , 1992.
7 F.3d at 1330 (“Two months after the allegedly prejudicial
statement is certainly not ‘at the earliest possible moment’
after discovery of the prejudice.”) (citation omitted).
Similarly, in Green v . Branson,
108 F.3d 1296 (10th Cir. 1997),
the court held that an affidavit was untimely when it was based
on a ruling entered on September 2 6 , 1994, but was not filed
until November 1 , 1994.
Id. at 1305. Here, Baldi had knowledge
of all the various “facts” alluded to in his affidavit at the
time he filed suit on May 2 9 , 2004. He knew no later than June
1 , 2004, that the case had been assigned to m e . Between July 8
and July 1 1 , he filed five responsive pleadings in this case.
Yet, he did not file his motion and affidavit until August 2 .
While the court of appeals for this circuit has yet to
address this precise issue, the standard set out in Sykes and
Green seems reasonable. A section 144 affidavit ought to be
filed promptly after the alleged grounds allegedly warranting
recusal are known to the filer. Here, Baldi did not file his
motion to recuse and supporting affidavit promptly after
acquiring the purported knowledge upon which his motion is based.
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S o , initially, because Baldi’s motion is not timely, he is not
entitled to recusal.
Even if Baldi’s motion is deemed timely, however, it is
still legally insufficient. The evidence of bias Baldi posits
consists entirely of judicial rulings made in a previous case
over which I presided. His supporting affidavit asserts no
extrajudicial source for any knowledge he claims I have
concerning his alleged efforts to reveal so-called unlawful
actions by government officials. Thus, his affidavit does not
sufficiently allege any facts that would counsel, much less
require, recusal. Kelley, 712 F.2d at 889.
While it is always tempting for a judge to simply recuse
from cases, such as this, brought by frequent litigators with
growing reputations for asserting weak and difficult to manage
legal claims, nevertheless, a judge is as duty bound to sit when
recusal is not appropriate as to recuse when it is appropriate.
See Laird v . Tatum, 409 U.S. 8 2 4 , 837 (1972) (citations omitted).
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Because Baldi’s motion for recusal (document n o . 22) is both
untimely and legally insufficient, it i s , with regret, denied.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
September 1 3 , 2004
cc: John A . Baldi
Charles A . Russell, Esq.
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