The opinion of the court was delivered by: MADDEN
This matter is now before the Court pursuant to the filing, on November 20, 1953, of an affidavit of bias and prejudice as against the writer as the trial judge about to preside at the jury trial of Criminal Indictment No. 310-52. The affidavit in question, which seeks the disqualification of this writer, invokes the operation of Title 28 U.S.C.A. § 144.
While the statutory provision of Congress providing for the recusation or disqualification of a trial judge by the filing of an affidavit of bias or prejudice is a remedial measure having for its purpose assurance to litigants of a fair and impartial trial before a judge of the United States, it has been well established that the statute is to be given the utmost of strict construction in order to safeguard the judiciary from frivolous attacks upon its dignity and integrity, and to avoid interruption of its ordinary and proper functioning.
Such statute is not intended or permitted to enable a litigant who has filed such an affidavit to paralyze the action of a judge who has presided in a prior case against the affiant, or over a question in it, by the interposition of a motion to disqualify him.
In the case of Cole v. Loew's Inc., D.C., 76 F.Supp. 872, 876, 877, certiorari denied, 340 U.S. 954, 71 S. Ct. 570, 95 L. Ed. 688, in disposing of an affidavit of bias and prejudice filed against him, Judge Yankwich, ably reviewed the then existing case law in the Federal System from which he distilled four guiding rules, or norms, for the disposition of such an affidavit, and with which this Court is in accord:
'(1) The mere filing of an affidavit does not oust the judge from the cause.
'(2) The judge has the right to determine the legal sufficiency of the affidavit.
'(4) Definite views on the law, adverse rulings in the case on trial, or adverse rulings against the suitor in other cases or in cases involving similar facts do not constitute such disqualification, even in a criminal prosecution.'
It is, therefore, the duty of the judge before whom an affidavit of bias or prejudice is filed to determine in the first instance whether or not such affidavit is legally sufficient, and if insufficient to refuse to disqualify himself.
The test which is thus to be applied in determining the legal sufficiency of an affidavit of personal bias or prejudice was established as early as 1920 by the Supreme Court of the United States in Berger v. United States, 255 U.S. 22, 33, 41 S. Ct. 230, 233, 65 L. Ed. 481, where it was stated: 'Of course the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.'
The affidavit of bias and prejudice filed in this matter is made on behalf of the defendant, Sylvia Y. Neff, which affidavit contains a certificate of good faith attached by her counsel of record, as required by the statute; a succinct statement of the allegations of such lengthy affidavit is set forth in the margin,
the original of which is contained in the file of the Clerk of this Court.
The Court considers the certificate of good faith and the reasons for failure to file the affidavit within the statutory time as being sufficient in law and will, therefore, deal directly with the allegations contained in the affidavit itself.
It is the settled law, that an affidavit to disqualify a judge on the grounds of bias or prejudice must state facts and reasons which tend to show personal bias or prejudice regarding the justiciable matter pending, as distinguished from conclusions of the affiant, and must give support to a charge of a bent mind that may prevent or impede the impartiality of his judgment.6A Where an affidavit is filed for such purpose, the question to be resolved is whether the affidavit asserts facts from which a reasonable mind might fairly infer a personal bias or prejudice on the part of the judge.
It is a 'personal sense' to which the statute is directed.
The affidavit must state more than mere conclusions, that is , it must state facts and reasons which logically support the conclusion of bias or prejudice so contended for.
If the alleged facts support the conclusion asserted, and the affidavit is legally sufficient, the trial judge shall proceed no further, and another judge shall be assigned to hear the merits thereof.
It is to be noted, however, that the facts as alleged in the affidavit are to be taken as true for the purpose of ruling on the legal sufficiency of such affidavit.
The public statements of the trial judge in open court following a jury verdict against this defendant in a prior and different criminal prosecution could have in no manner adversely affected the rights of this defendant. The trial was concluded and the verdict rendered; the pending proceeding is a new and different proceeding.
The interdiction of the law is not the mere possession of definite views regarding the law, or the conduct of a party, or even a 'prejudgment' of the matters in controversy, but rather an attitude of personal enmity towards the party affiant, or in favor of the adverse party to the detriment of the former.
A judge cannot be disqualified merely because he believes in upholding the law, even though he says so with vehemence.
As was pointed out in the case of In re J. P. Linahan, Inc., 2 Cir., 1943, 138 F.2d 650, 652, 'The judge * * * owes a duty to act in accordance with those basic predilections inhering in our legal system. The standard of dispassionateness obviously does not require the judge to rid himself of the unconscious influence of such social attitudes.' In the case of United States v. Fujimoto, D.C., 101 F.Supp. 293, the court held, that an affidavit of personal bias and prejudice which alleged that the trial judge had made certain statements during a naturalization address preceding a trial of defendant-affiant for conspiracy for alleged violations of the Smith Act, 18 U.S.C.A. § 2385, characterizing the goal of the Communist Party, of which defendant had become the chairman in Hawaii, as being designed to seize the powers of Government by and for a minority by violence and undemocratic means, was insufficient to sustain the affidavit in law, in view of the fact that the statements of the judge were merely correct statements of the law in accordance with the previously enacted Internal Security Act, and with opinions of the Supreme Court of the United States.
The opinion after the prior verdict expressed in this court in no manner demonstrates a personal bias or prejudice against this affiant in a new and different criminal prosecution as a matter of law in ruling upon the legal sufficiency of this affidavit. As was stated by Chief Judge Major, for the Court of Appeals for the 7th Circuit, in Tucker v. Kerner, 186 F.2d 79, 84:
'Whether such an opinion was justified is beside the point. At most, it could only represent a judicial opinion and furnishes no support for the charge made in the affidavit. Every member of this court, every member of any court, every judge, when he hears a case or writes an opinion must form an opinion on the merit and oft times no doubt an opinion relative to the parties involved. But this does not mean that the judge has a 'personal bias or prejudice.' If it did, the disqualification of ...