The opinion of the court was delivered by: Hedges, United States Magistrate Judge.
The Federal Magistrates Act, 28 U.S.C. § 631 et seq. ("the Act"),
authorizes the creation of both full-time and part-time United States
magistrate judges. The Guide to Judiciary Policies and Procedures
("Guide"),*fn2 discusses the latter position in Volume III, Chapter X,
Part C(3)(J), in pertinent part, as follows:
Consistent with the Guide, Mautone presides over criminal and
quasi-criminal matters which occur on federal installations in the State
of New Jersey. He normally sits at these installations. Mautone is not
assigned any "additional duties" under Section 636(b) or (c).
The Act distinguishes between full-time and part-time magistrate judges
in their "character of service." 28 U.S.C. § 632 (b) provides:
Consistent with Section 636(b), a part-time magistrate judge such as
Mautone is permitted by statute to engage in the practice of law while
full-time judicial officers are prohibited from doing so.
In recognition of the unique status of magistrate judges in the federal
judicial system, the Judicial Conference has promulgated conflict of
interest rules applicable to them:
As noted above, Mautone has not been assigned additional duties under
Section 636(b) and does not conduct "consent" proceedings under Section
636(c). Mautone's appearance as trial counsel for the defendant sub
judice is consistent both with the Act and the conflict of interest rules
of the Judicial Conference.
Recognizing these undisputed facts,
plaintiff now mounts what is in effect a constitutional challenge to the
statutory and "regulatory" scheme described above.
"There is a constitutional right to have a `neutral and detached judge'
preside over judicial proceedings. In addition, quite aside from the
rights of the litigants, the purity of the judicial process and its
institutions is at stake." 13A C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure, § 3541 at 548-49 (2d ed. 1984)
(footnotes omitted). The United States Supreme Court, in In re
Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), described
this right in due process terms:
See Kinnear-Weed Corp. v. Humble Oil & Refining Co.,
439-40 (5th Cir. 1968) (en banc) (disqualification of judge "is a matter
which transcends the interests of the parties. The purity of the judicial
process and its institutions is the thing at stake").
Plaintiffs argument in support of his unconstitutional claim advances
along two fronts. First, plaintiff argues that the trial judge is a
"colleague" of Mautone and may be "subconsciously" influenced by this
"collegiality" to rule in Mautone's favor. Second, plaintiff argues that
a juror who learns of Mautone's part-time position may become biased in
favor of Mautone's witnesses and client. These arguments should be
As a preliminary matter, "[f]ederal statutes are presumed
constitutional." Koslow v. Commonwealth of Pennsylvania, 2002 WL
1925569, at *9, 2002 U.S.App. LEXIS 17279, at *30-31, No. 01-2782, slip
op. at 19 (3d Cir. Aug. 21, 2002); see Rostker v. Goldberg, 453 U.S. 57,
64, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) ("Whenever called upon to judge
the constitutionality of an Act of Congress . . . the Court accords
`great weight to the decisions of Congress'"). Accordingly, Section
632(b) is entitled to a presumption of constitutionality.
It is also well-settled that "courts should decide only `a real,
substantial controversy,' not a mere hypothetical question." 13A C.
Wright, A. Miller & E. Cooper, Federal Practice and Procedure, §
3532.2 at 137 (footnotes omitted). Moreover, a hypothetical concern of a
due process violation that, as alleged here, stems from a judge's
relationship or "familiarity with defendants * * * is not sufficient to
disqualify a judge from presiding in a case." United States v. Edwards,
39 F. Supp.2d 692, 699 (M.D.La. 1999) (denying motion for recusal where
judge's son was associate in law firm representing co-defendant).
Plaintiffs hypothetical and speculative concerns are insufficient to
sustain a constitutional challenge based on either of the two arguments
identified above.*fn5 In any event, any legitimate concerns of plaintiff
may be addressed in nonconstitutional terms. Cf. Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 345-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936)
(Brandeis, J., concurring) (recounting "rules" under which the Supreme
Court "has avoided passing upon a large part of all the constitutional
questions pressed upon it for decision").
The Concern About the Trial Judge
The "Code of Conduct of United States Judges" applies to all federal
judicial officers. The Code was first adopted by the Judicial Conference
on April 5, 1973 and was last revised at the September, 1999 session of
the Judicial Conference. Canon 1 of the Code provides that "a judge
should uphold the integrity and independence of the judiciary." The
Commentary to Canon 1 states,
(t)he Canons are rules of reason. They should be
applied consistent with
constitutional requirements, statutes, other court
rules and decisional law, and in the context of all
relevant circumstances. The Code. is to be construed
so as not to impinge on the essential independence of
judges in making judicial decisions.
Canon 3 provides that "a judge should perform the duties of the office
impartially and diligently." More specifically, Canon 3C(1) provides that
"[a] judge shall disqualify himself or herself in a proceeding in which
the judges' impartiality might reasonably be questioned * * *." One such
instance is when "the judge has a personal bias or prejudice concerning a
party." Canon 3(C)(1)(a).
The Code sets forth standards of conduct for federal judicial
officers. It also describes circumstances when federal judicial officers
should disqualify themselves. Statutory disqualification standards for
federal judicial officers are also set forth in Sections 144 and 455 of
Title 28. When applicable, these sections are to be read together. Liteky
v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474
28 U.S.C. § 455 (b)(1) requires a judge to disqualify himself only
when "he has a personal bias or prejudice concerning a party." Thus, "a
judge's acquaintance with a party, an attorney, or a witness, without
some factual allegation of bias or prejudice, is not sufficient to
warrant recusal." Bailey v. Broder, 1997 WL 73717, at *3, 1997 U.S.Dist.
LEXIS 1751, *9, (S.D.N.Y. Feb. 20, 1997). Moreover potential "bias for or
against an attorney, who is not a party, is not enough to require
disqualification unless it can also be shown that such a controversy
would demonstrate bias for or against the party itself." Edwards, 39 F.
Supp.2d at 711.
In a similar manner, upon the application of any party by a sufficient
affidavit, 28 U.S.C. § 144 requires a judge to be disqualified when
that judge "has a personal bias or prejudice" concerning the filing
party. "[T]he facts [set forth in the affidavit] must be sufficiently
definite and particular to convince a reasonable person that bias
exists; simple conclusions, opinions or rumors are insufficient." United
States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993). Even in the face of
an otherwise valid affidavit, as one court noted, "[A judge] must have
neighbors, friends and acquaintances, business and social relations . . .
the ordinary results of such associations and the impressions they
create in the mind of the judge are not the "personal bias or prejudice'
to which the statute refers." Comm. of Pa. v. Int'l Union of Operating
Engineers, 388 F. Supp. 155, 159 (E.D.Pa. 1974) (quoting United States
v. Gilboy, 162 F. Supp. 384, 400 (M.D.Pa. 1958)). In accordance with this
principle, it has been held that a judge's attenuated personal relations
with a defendant, also a judge, was insufficient to rise to the level of
"personal bias or prejudice", even where the presiding judge remarked
favorably as to the merits of the defendant judge's case. Harley v.
Oliver, 400 F. Supp. 105, 108-11 (W.D.Ark. 1975).
Here, there are no allegations of specific facts to support plaintiffs
contention that Mautone's representation would influence the trial
judge. These conclusory and attenuated allegations of "personal bias or
prejudice" by the plaintiff can not be sustained under either
Although there appears to be a question whether the statutory
disqualification standards are coterminous with the Due Process Clause of
the Fifth Amendment*fn6 judicial disqualification based on a
generalized bias or prejudice will only be constitutionally required "in
the most extreme of cases." Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813,
820-21, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) ("[o]nly in the most
extreme of cases would disqualification on [the basis of a generalized
bias implicate due process concerns] and be constitutionally required
. . ."). Mautone's general relationship with the Court as a
part-time magistrate judge does not create a personalized bias, as
contemplated by Sections 144 or 455, nor does it rise to the level of
"extreme," as required by Aetna. Therefore, plaintiffs Due Process
claim must fail.
On a separate but related point, whether the trial judge should recuse
herself is, of course, a decision for her to make alone. However, I find
it difficult to accept that a litigant's unsubstantiated and hypothetical
concern that a trial judge might be "subconsciously influenced" by
Mautone's presence could justify recusal. See Withrow v. Larkin,
421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (There is a
presumption of "honesty and integrity of those serving as adjudicators");
In re Aguinda, 241 F.3d 194, 204 (2d Cir. 2001) (It is presumed that "a
judge will put personal beliefs aside and rule according to the laws as
enacted, as required by his or her oath"); United States v. Greenough,
782 F.2d 1556, 1558 (11th Cir. 1986) ("[A] judge . . . should not recuse
himself on unsupported, irrational, or highly tenuous speculation").*fn7
The Juror Concern
Plaintiffs concern about jurors is readily addressed. First, statement
made by lawyers are not evidence. See Government of the Virgin Islands
v. Oliver, 360 F.2d 297, 298 (3d Cir. 1966). Second, "jurors must
ultimately base their judgment on the evidence presented and the rational
inferences therefrom." Draper v. Airco, Inc., 580 F.2d 91, 95 (3d Cir.
1978). Even assuming that a juror were to somehow learn of Mautone's
status as a part-time magistrate judge, plaintiffs recourse is to ask the
trial judge for an appropriate instruction, just as the trial judge
will, as a matter of course, instruct the jury that statements made by
attorneys are not evidence and that jurors must decide the matter before
them on the basis of the evidence presented. "The purpose of jury
instructions is to inform the jury on the law and to provide proper
guidance and assistance in reaching its verdict." Bucyrus-Erie Co. v.
General Products Corp., 643 F.2d 413, 418 (6th Cir. 1981). Accordingly,
because "[t]he trial court enjoys considerable latitude in selecting
appropriate language," carefully constructed instructions can effectively
thwart the potential for bias. Bucyrus-Erie, 643 F.2d at 418. There is
simply no reason for any prophylactic measures to be taken with regard to
For the reasons set forth above, plaintiffs motion to declare
unconstitutional the statutory framework pursuant to which a part-time
magistrate judge may engage in the practice of law is DENIED. Likewise,
plaintiff s motion to disqualify Mautone is DENIED. For these reasons,
plaintiffs request to transfer this civil action to another judicial
district is DISMISSED.