Case No. 07-20593-D-13L, Docket Control No. [none].United States Bankruptcy Court, E.D. California.
May 11, 2007
MEMORANDUM DECISION ON PEREMPTORY CHALLENGE/MOTION FOR DISQUALIFICATION
ROBERT BARDWIL, Bankruptcy Judge
I. BACKGROUND
On January 30, 2007 Charel Winston (the “debtor”) initiated the above Chapter 13 case. Also on January 30, 2007, Lawrence J. Loheit (the “Trustee”) was appointed the Chapter 13 Trustee. On March 8, 2007 the Trustee filed a Motion to Dismiss (the “Motion to Dismiss”) the debtor’s case. The Motion to Dismiss is based, in part, on the debtor’s failure to obtain pre-petition credit counseling, as required by section 109(h) of the Bankruptcy Code (the “Code”).
On March 23, 2007 the debtor filed opposition to the Motion to Dismiss (the “Opposition”). The Opposition is based, in part, on the debtor’s assertion that she is disabled and pre-petition credit counseling does not apply to her under section 109(h)(4) of the Code.[1] The Opposition was not served on the United States Trustee
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(the “UST”), nor did the debtor motion the court to be exempt from the credit counseling requirement of section 109(h) of the Code.
On April 17, 2007, the debtor filed an Application to Seal Medical Records (the “Application to Seal”) requesting to have certain medical records filed under “seal.” The medical records are filed in support of the Opposition. The debtor did not serve the Application to Seal on the UST, nor set the matter for hearing.
On April 23, 2007, the debtor filed a pleading entitled “Peremptory Challenge to Judge Robert S. Bardwil.” The court construes the debtor’s peremptory challenge as a motion to disqualify the undersigned (the “Motion to Disqualify”). The Motion to Disqualify is premised on two grounds. First, the debtor asserts she is disabled and entitled to certain accommodations under the Americans with Disabilities Act of 1990. Specifically, the debtor asserts she should not be required to follow the court’s standard procedure for making telephone court appearances. The debtor asserts that as a result of her disability she should be
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permitted to make telephone appearances without incurring the cost of going through Court Conference (the “Telephone Accommodation”). The Motion to Disqualify assumes that the court denied the debtor’s request for the Telephone Accommodation.
Second, the Motion to Disqualify assumes that because the Application to Seal was not immediately acted upon, that it was denied. The Motion to Disqualify then concludes that because the court did not grant the debtor’s request for the Telephone Accommodation and did not immediately act upon the Application to Seal, that the undersigned is biased and unable to be impartial toward the debtor in this case.
On April 27, 2007 the court issued an order setting a hearing on the Application to Seal and grants the debtor’s request to keep her medical records from being made public on an interim basis until the hearing. Also on April 27, 2007, the court issued an order setting a hearing on the debtor’s request for the Telephone Accommodation and grants the request on an interim basis until the hearing.
II. ANALYSISA. Legal Standards for Disqualification
This court has jurisdiction over the Motion pursuant to 28 U.S.C. sections 1334 and 157(b)(1). The Motion is a core proceeding under 28 U.S.C. section (b)(2)(A) (0); In re Betts, 143 B.R. 1016, 1018 (Bankr. N.D. Ill. 1992).
“A bankruptcy judge shall be governed by 28 U.S.C. § 455, and disqualified from presiding over the proceeding or contested matter in which the disqualifying circumstance arises, or, if appropriate,
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shall be disqualified from presiding over the case.” Fed.R.Bankr.P. 5004(a).
Section 455 of Title 28 provides in part as follows:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.
The Code of Conduct for United States Judges (the “Code of Conduct”) mirrors the provisions of 28 U.S.C. § 455. The Code of Conduct requires that “every judicial officer must satisfy himself that he is actually unbiased towards the parties in each case and that his impartiality is not reasonably subject to question.” Bernard, 31 F.3d at 843. Under this standard, the judge must not only be subjectively confident that he is unbiased; it is also objectively necessary that “an informed, rational, objective observer would not doubt his impartiality.”Id. at 844, citing United States v. Winston, 613 F.2d 221, 222
(9th Cir. 1980). However, “to say that § 455(a) requires concern for appearances is not to say that it requires concern for mirages.” United States v. El-Gabrowny, 844 F. Supp. 955, 961
(S.D.N.Y. 1994). As such, recusal must be based on factors in the record and in the law. Id. at 962.
Cases applying recusal statutes apply a presumption of impartiality. E.g. In re Larson, 43 F.3d 410, 414 (8th Cir. 1994) (judge presumed impartial; parties seeking recusal bear “substantial burden” of proving otherwise); First Interstate Bank
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v. Murphy, Weir Butler, 210 F.3d 983, 987 (9th Cir. 2000) (“Judicial impartiality is presumed”); In re Spirtos, 298 B.R. 425, 431 (Bankr. C.D. Cal. 2003) (“A judge is presumed to be qualified to hear a matter and the burden is upon the moving party to prove otherwise”).
It is not a basis for disqualification that a party to a proceeding disagrees with the court’s ruling. The cases are uniform that a “judge’s adverse rulings in the course of a judicial proceeding almost never constitutes a valid basis for disqualification based on bias or partiality.” 12 James Wm. Moore, Moore’s Fed. Practice § 63.21(4), at 63-39 (3d. Ed. 2006) (citing cases); see also Liteky, 510 U.S. at 554-55.
B. Discussion
The debtor did not follow the proper procedure to bring her request for the Telephone Accommodation before the court. The debtor contacted the courtroom deputy and asked to make a telephone appearance without following the court’s normal procedure. The courtroom deputy does not have the authority to allow for telephone appearances if a party does not follow normal protocol. The request for the Telephone Accommodation should have been presented to the court in a written motion. In order to consider the debtor’s request for the Telephone Accommodation, the court has noticed a hearing on the request and granted the request in the interim.
In regard to the Application to Seal, the debtor failed to serve the UST with the application or set the matter for hearing. As a result, the Application to Seal was not immediately acted upon. Section 107 of the Code provides that documents filed in a bankruptcy case are public record and open to examination. The
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court construes the Application to Seal as a request for a protective order to keep the debtor’s medical records from becoming public record. Accordingly, the court’s order of April 27, 2007 sets a hearing on the Application to Seal and provides that the debtor’s medical records are sealed until the hearing. The court has deferred making a final ruling on the Application to Seal until such time as parties in interest, including the UST, have been given an opportunity to be heard.
The Motion to Disqualify is premised solely on the assumption that the undersigned denied the debtor’s request for the Telephone Accommodation and the Application to Seal. The assumptions underlying the Motion to Disqualify are premature, as the court has denied neither of these requests, but instead has set the matters for hearing. However, regardless as to what the court’s final ruling may be, an adverse ruling against the debtor is not a basis for disqualification.
In summary, the undersigned is satisfied that he is actually unbiased toward the debtor. Further, the undersigned cannot conclude that the grounds advanced by the debtor for disqualification are such that would cause a reasonable person with knowledge of the relevant facts to question the impartiality of the undersigned. Accordingly, the Motion to Disqualify will be denied.
A separate order will be entered consistent with this memorandum decision.