On Mon, 30 Jul 2001 06:19:05 GMT, hkhenson@home.com (Keith Henson) wrote: Kobrin's declaration through Exhibit A only. Since Exhibit A is the judge's memorandum decision denying recusal,. She apparently means to recap everything since May.


Elaine M. Seid, SBN 72588 MCPHARLIN, SPRINKLES & THOMAS LLP Ten Almaden Blvd., Ste. 1460 San Jose, CA 95113 Telephone: (408) 293-1900
Thomas R. Hogan, SBN 042048 Leslie Holmes, SBN 192608 LAW OFFICES OF THOMAS R. HOGAN Ten Almaden Blvd., Ste. 535 San Jose, CA 95113 Telephone: (408) 292-7600
Samuel D. Rosen, Esq. PAUL, HASTINGS, JANOFSKY & WALKER LLP 399 Park Avenue, 31st Floor New York, N.Y. 10022-4697 Telephone: (212) 318-6000
Helena K. Kobrin, SBN 152546 MOXON & KOBRIN 3055 Wilshire Blvd., Ste. 900 Los Angeles, CA 90010 Telephone: (213) 487-4468
Attorneys for Creditor RELIGIOUS TECHNOLOGY CENTER
UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
In re H. KEITH HENSON ) U.S.D.C. No. [blank]
CASE NO.: 98-51326ASW-13
Debtor. ) (Chapter 13)
DECLARATION OF HELENA K. KOBRIN I, Helena K. Kobrin, hereby declare: I. I am one of the attorneys of record for creditor Religious Technology Center ("RTC"). I have personal knowledge of the facts set forth below, and if called upon to do so, could and would testify competently thereto.
DECLARATION OF HELENA K. KOBRIN 1 [end of p. 1] ------------------- 2. Attached hereto as exhibits are true and correct copies of the following:
Exhibit A Memorandum Decision Denying Motion to Recuse (June 1, 2001). Exhibit B A certified copy of a Riverside County Superior Court Case Print for State v. Henson, Case No. HEMO 143 71. Exhibit C An article that appeared in *The Toronto Star* on May 30, 2001. Exhibit D A posting by Keith Henson, via the e-mail account of'Gregg (elrondl@home.com)" on May 15,2001. Exhibit E Pertinent excerpts from a transcript of a status conference in this case o November 20,2000. Exhibit F Pertinent excerpts from a transcript of a hearing in this case on September 13,2000. Exhibit G Pertinent excerpts from a transcript of a trial-setting conference in this case on March 13, 2001. Exhibit H RTC's Motion to Disqualif Judge Weissbrodt. Exhibit I Debtor's Response to Motion to Disqualify. Exhibit J A letter of June II, 2001 from Samuel D. Rosen to Judge Weissbrodt. Exhibit K Pertinent excerpts of a hearing transcript of May 3, 2001 before Judge Weissbrodt in In re Jacqueline Vante, No. 00-52665-ASW. Exhibit L An Order of September 29, 1998 in RTC v. Henson, No. C-96-20271 RMW. Exhibit M The Juror Questionnaire used in RTC v. Henson, No. C-96-20271 RMW. Exhibit N A Jury Instruction used in RTC v. Henson, No. C-96-20271 RMW. Exhibit 0 Debtor's Interrogatories to creditor RTC. Exhibit P Debtor's Requests for Production of Documents to RTC. Exhibit Q Order for Trial-Setting Conference re Motion to Dismiss or Convert Case. Exhibit R Pertinent portions of the Joint Trial Setting Statement.
DECLARATION OF HELENA KOBRIN 2 [end of page 2] -------------------- Exhibit S The transcript of the May 3, 2001 hearing on RTC's motion to disqualify Judge Weissbrodt.
3. So that the Court will have a complete record, we are also giving the Court, separately bound, the Declaration of Helena K. Kobrin in Support of the Motion to Disqualify and the Reply. These were previously served on all parties.
I declare under penalty of perjury that the foregoing is true and correct. Executed at Los Angeles, California the 10th day of June, 2001.
[signature] HELENA K. KOBRIN
DECLARATION OF HELENA K. KOBRIN 3 [end of p. 3] --------------- [EXHIBIT A] FILED JUN - 1 2001 [initials] KEENAN G. CASADY, CLERK United States Bankruptcy Court San Jose, California
UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA In re: ] Case No. 98-51326-ASW

H. KEITH HENSON, ] Chapter 13

Debtor MEMORANDUM DECISION DENYING MOTION TO RECUSE
Before the Court is a motion by Religious Technology Center ("Creditor"), a creditor of H. Keith Henson ("Debtor"), to recuse the undersigned from handling Debtor's Chapter 13 case. The motion is opposed by Debtor. Creditor holds a pre-petition District Court judgment in the amount of $75,000 statutory damages for Debtor's infringement of Creditor's copyright -- Creditor's claim filed in this case totals $1,060,636.86, for the judgment as well as pre-petition attorney's fees of approximately $866,000, pre-petition sanctions sought in the District Court of approximately $96,219, and pre-petition costs of some $23,500[1]-- Creditor contends that Debtor is also liable ----------------------- [1] The claim has never been amended to show whether any amounts over and above the $75,000 statutory damages were ever awarded by the District Court.
MEMORANDUM DECISION DENYING MOTION TO RECUSE [end of p. 1 of Exhibit A] --------------- for District Court judgments based on post-petition acts by Debtor, which amounts are not included in Creditor's claim. Creditor has objected to confirmation of Debtor's Chapter 13 Plan, alleging that it is not feasible and has been proposed in bad faith. Creditor has also filed a motion to dismiss the Chapter 13 case with prejudice or convert it to Chapter 7, alleging that Debtor filed bankruptcy in bad faith. Trial of both Creditor's objection to confirmation and Creditor's motion for dismissal or conversion is in the process of being scheduled. Creditor's recusal motion asserts that this Court has demonstrated bias against Creditor and favoritism toward Debtor in several ways during the case, which can be summarized as: suggesting that the parties attempt settlement and stating an example of a possible payment amount; stating that Creditor's claim might not justify the effort and expense to litigate; commenting on disparities between financial and legal resources available to each party, Debtor's age, and the fact that Creditor is a religious organization; and making rulings that Creditor contends are favorable to Debtor. Creditor argues that the Court's actions and statements show that the Court is (in Creditor's words): "prejudging the case"; "collaterally attacking" the jury verdict underlying Creditor's judgment; "demeaning" the importance of Creditor's copyright; "demeaning" the Scientology religion; "chastising" and "criticizing" Creditor for being represented by many attorneys; and affording "unequal treatment" and indulging in "blatant favoritism" toward Debtor based on "improper" factors such as the number of Creditor's attorneys and Debtor's age.
Creditor seeks recusal pursuant to 28 U.S.C. §455 (a), which
MEMORAMDUM DECISION DENYING MOTION TO RECUSE 2 [end of p. 2 of Exhibit A] ------------ provides that: Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
This Court is not subjectively biased toward Debtor or Creditor. However, as Creditor correctly notes, the test under §455 (a) is an objective one, "so that what matters is not the reality of bias or prejudice but its appearance", *Liteky v. U.S.*, 510 U.S. 540, 548, 114 S.Ct. 1147 (1994) ("*Liteky*"). *Liteky* also upheld application of the "extrajudicial source" doctrine to §455 (a) -- the doctrine provides that recusal is generally not warranted for opinions based on events within the proceedings (as opposed to opinions based on extrajudicial sources), subject to the "pervasive bias" exception when a Judge displays a predisposition that, although based on events within the proceedings, is nevertheless "so extreme as to display clear inability to render fair judgment", *Liteky*, at 551. *Liteky* noted (at 550-551) that:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child- like innocence. If the judge did not form judgments of the actors in those courthouse dramas called trials, he could never render decisions." *In re J.P. Linahan. Inc.*, 138 F.2d 650, 654 (CA2 1943).
*Liteky* explained (at 555-556) that, where no extrajudicial source is involved, the issue of whether a Judge's conduct, when viewed objectively, raises questions about impartiality is a matter of degree:
MEMORAMDUM DECISION DENYING MOTION TO RECUSE 3 [end of page 3 of Exhibit A] ---------------------- ... opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do. not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in *Berger v. United States*. 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), a World War I espionage case against German-American defendants: "One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans" because their "hearts are reeking with disloyalty." *Id.*, at 28 (internal quotation marks omitted) . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration -- even a stern and short-tempered judge's ordinary efforts at courtroom administration -- remain immune.
The Ninth Circuit has stated the rule as:
"[R]emarks in a judicial context [must] demon- strate such pervasive bias and prejudice that [they] constitute ] bias against a party.", *King v. United States Dist. Court*, 16 F.3d 992, 993 (9th Cir. 1994) .
*U.S. v. Wilkerson*, 208 F.3d 794, 798 (9th Cir. 2000) ("*Wilkerson*").
Creditor does not allege that this Court has been influenced by any extrajudicial source. Creditor's motion focuses primarily (but: not exclusively) on statements made by the Court at the end of a status conference on March 13, 2001, at which the Court urged the parties to consider settlement rather than going to trial: Now I'm going to make a suggestion to you, which I anticipate would be difficult for either client even to consider, but I'm going to make it anyway.
MEMORANDUM DECISION DENYING MOTION TO RECUSE 4 [end of p. 4 of Exhibit A] --------------------- I wish Mr. Henson were here and somebody from the RTC were here, but you can order a copy of the tape if you think it would be of any assistance.
And I don't want any comments because I don't want to ask anybody their settlement positions, but this is what I suggest. I don't want to have a problem in terms of receiving settlement discussions on the record. But here is what I suggest:
I suggest that Mr. Henson and RTC agree that Mr. Henson will make a cash payment in a-- significant but reasonable for somebody in his financial position to the RTC. And if either he can confirm the plan or, as part of the overall deal, or dismiss the case if that's what he wants, with the understanding that both are free to exercise whatever First Amendment and other rights they may have.
I don't think the payment should be huge, but I think it should be significant, maybe $10,000. Some number which is clearly a bite for somebody who is in Mr. Henson's position, but the number is negotiable. Given the way Mr. Henson feels, it would be like turning money over to his worst enemy and virtually impossible for him to consider. But Mr. Henson clearly has made mistakes, including mistakes of judgment, in many respects.
Now why should the RTC consider something like this. Well, the RTC is in one of the most unusual postures that I have ever seen in a case, one which I'm sure you have thought through much more than I have.
Here we have a situation in which an organization that represents itself as a church is going after an older man in bankruptcy. And ostensibly what would happen is that would potentially force the sale of his house and crush him financially for having had the audacity to publish their religious doctrine in unaltered form. It's very unusual in terms of how many people understand religion or appropriate actions for a church.
Now on the one hand one might think the case has nothing to do with money. I have before me here four teams of lawyers, four different law firms represented here at this status conference calendar representing the RTC in what is essentially a scheduling hearing. Ms. Seid's firm, Mr. Rosen's firm, Ms. Kobrin's firm, Mr. Hogan's firm. Four different firms representing major legal talent.
Clearly the amount of money involved in this case
MEMORANUM DECISION DENYING MOTION TO RECUSE 5 [end of p. 5 of Exhibit A] ------------------- couldn't possibly warrant four law firms objecting to a Chapter 13 plan for a man with limited income who is advanced in age and he and his wife own a house.
And it's proposed that I have a trial which could take, by RTC's estimates, 15 days plus an adjustment if I rule certain ways upward, plus whatever time Mr. Henson needs. So we're talking about an investment of money to try this case given the assets involved, the investment of money is staggering.
So the question is: Why. And I suppose the answer will come to be, although I don't know this, is that this secret doctrine that Mr. Henson, this secret religious doctrine that Mr. Henson has published is so economically valuable to the RTC that it's worth this amount of money to make an example of Mr. Henson. RTC already has its injunction from the district court, as I understand it, so the case isn't about that. The case is about money, but Mr. Henson doesn't have a lot of money.
Nobody alleges that Mr. Henson has secreted millions of dollars and nobody alleges that Mr. Henson has the ability to pay millions of dollars. And yet the kind of trial time and allocation of resources that are being presented here, four law firms at a status conference, and it's been that way ever since the case began, one would think that this was a case involving tens if not hundreds of millions of dollars.
It's hard to know how it will end. I have the sense that if I rule for Mr. Henson, RTC will appeal; if I rule for RTC, perhaps Mr. Henson will appeal. So it won't stop here. It will keep going on. And except for factors, which are hard to understand, the case should settle. And if RTC obtained a cash payment, and they could wave that in front of other people and say, "We got Mr. Henson, who is just an ordinary guy in terms of his economic situation, to pay a substantial amount of money to the RTC," you would think that would make an impressive point, if that's what RTC wants.
I understand that Mr. Henson may not be able to do it in his way he looks at the world. And I understand that RTC may not be able to do it, the way they look at the world. But I'm outside of both of you. And in looking at this I can't believe really, on a certain level, that it's in either of your clients' interest to pursue it in this way.
I'm prepared to try it if you are, but I recommend that you try to resolve it. And I don't want -- I don't
MEMORANDUM DECISION DENYING MOTION TO RECUSE 6 [end of p. 6 of Exhibit A] ------------------- want to do anything that's going to inhibit my ability to try the case. So I instruct you not to tell me anything about your. settlement positions. I'm going to try the case, but I recommend that you give very serious consideration to trying to settle it.
Now the dollar number is just a number. It's not anything you need to focus on if you don't want to. You can .consider it ludicrous. You can consider it outrageously high, outrageously low. It doesn't really. make any difference. The question is whether you're prepared to settle on terms which will allow each party to go out with their First Amendment rights and their self-respect and to leave the situation.
If not, I will look forward to this very interesting trial. And it is a very interesting trial, one of the most interesting cases I've ever had, I have to say, but that's where we are. And that's what I suggest. A motion for recusal under §455 must be determined by the same Court whose recusal is sought:
[T]he somewhat surprising (and not entirely comfortable) reality is that the motion is addressed to, and must be decided by, the very judge whose impartiality is being questioned. *See*, *e.g.*, *United States v. Sibla*, 624 F.2d 864, 868 (9th Cir.1980); *United States v. Balistrieri*, 779 F.2d 1191, 1202-03 (7th Cir.1985) ("Section 455 clearly contemplates that decisions with respect to disqualification should be made by the judge sitting in the case, and not by another judge. " ) .
*In re Bernard*, 31 F.3d 842, 843 (9th Cir. 1994) ( "*Bernard*" ). Since the test is an objective one,
... [s]ection 455 requires not only that a judge be subjectively confident of his ability to be evenhanded, but also that an informed, rational, objective observer would not doubt his impartiality. [H]uman nature being what it is, we would all like to believe that no objective observer would ever doubt our impartiality. *See* *SCA Servs., Inc. v. Morgan*. 557 F.2d 110, 116 (7th Cir.1977) ("Because a judge must apply the standard [of section 455] both as its interpreter and its object, the general standard is even more difficult to define. [There is a] philosophical dilemma created by this objective-subjective conundrum. . . . ") .
*Bernard*, at 844. The Ninth Circuit has defined the objective
MEMORANDUM DECISION DENYING MOTION TO RECUSE 7 [end of p. 7 of Exhibit A] -------------- standard as: ... "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." [*U.S. v. Hernandez* 109 F.3d 1450, 1453 (9th Cir. 1997)], quoting *nited States v. Studley*83 F.2d 934, 939 (9th Cir.1986).
*Wilkerson(, at 798.
Creditor's motion expresses offense at the Court's remarks during the March 13 hearing, but that is a subjective response. Despite the inherent "philosophical dilemma" presented by applying an objective standard to one's own actions, this Court is convinced that the statements in question do not, when viewed objectively, suggest bias toward either party or a lack of impartiality about the issues in the case. Rather, they convey the Court's opinion that settlement might be preferable to litigation for both parties under the circumstances that exist. Those circumstances include the fact that Creditor already has an injunction from the District Court prohibiting Debtor from continuing to infringe Creditor's copyright, so the most that Creditor can gain now is money -- Creditor has consistently maintained that it hopes to deter others who might follow Debtor's lead by showing that Creditor is capable of winning and enforcing large monetary judgments despite bankruptcy. Here, it has not been shown that Debtor has any significant assets other than his home,[2] which he asserts had no non-exempt equity on the date of bankruptcy; Creditor urges that the house has since appreciated to such an extent that Debtor could easily pay most or all of Creditor's claim, but there is a legal -------------- [2] Creditor believes that Debtor owns some artwork of value, but Debtor contends that the property belongs to his daughter and is worth only approximately $10,000 or less.
MEMORANDUM DECISION DENYING MOTION TO RECUSE 8 [end of p. 8 of Exhibit A] ------------ issue of first impression as to whether post-petition appreciation is available to creditors in a Chapter 13 case -- accordingly, it is quite possible that Creditor could recover nothing from litigation, whereas a settlement payment from Debtor could be publicized by Creditor to achieve the deterrent effect that . Creditor considers important. It is clear from the context of the Court's remarks that what Creditor describes as "prejudging" by valuing Creditor's claim and legal position at $10,000 is nothing more than stating an example of an amount that might be "substantial" or "significant", "[s]ome number which is clearly a bite for somebody who is in Mr. Henson's position, but the number is negotiable" -- Debtor has made it plain on the record in this Court that he considers Creditor evil and a danger to society, such that voluntarily giving anything to his enemy would be anathema in Debtor's view. [3]
It is equally clear from context that this Court did not "demean" the Church of Scientology, its religious principles, or the integrity of copyrights -- this Court merely suggested that Creditor consider devoting its resources to settlement rather than continuing pursuit of a bankruptcy debtor who is near the age of -------------- [3] Creditor's contention (Brief at pg. 5) that the Court has somehow valued its claim at $10,000 is incorrect. The amount of Creditor's claim in this bankruptcy case is simply not at issue, since Debtor has not objected to it. Pursuant to §502 (a), Creditor's claim is deemed allowed in the amount for which it was filed until and unless an objection to it is filed. Creditor's ability to collect its claim in bankruptcy depends upon resolution of a combination of legal and factual issues, including the confirmability of Debtor's plan and the legal issue of first impression referred to above as to whether post-petition appreciation of a Debtor's residence is available to creditors in a Chapter 13 case.
MEMORANDUM DECISION DENYING MOTlON TO RECUSE 9 [end of p. 9 of Exhibit A] ----------- retirement and appears to have no valuable assets other than his home. In the course of urging the parties to think about settlement, this Court noted that Creditor has spent more time and money than is typical for creditors in Chapter 13 cases, and opined that Creditor's approach seemed disproportionate to what is at stake -- but such statements cannot fairly be taken as criticism or as belittling the importance of Creditor's rights, nor do they suggest prejudice against Creditor or its legal position; they merely state the obvious, that Creditor may be hunting gnats with an elephant gun and might be better off compromising .[4] It is an appropriate function of the courts to encourage and promote settlement as much as possible, since the law favors settlement over litigation for its own sake, see *In re Blair*, 538 F.2d 849 (9th Cir. 1976); *In re A & C Properties*,. 784 F.2d 1377 (9th Cir. 1986), *cert. denied sub nom Martin v. Robinson*, 479 U.S. 854, 107 S.Ct. 189 (1986) -- performing that task does not constitute "prejudging" or expression of bias, and an objective assessment of this Court's remarks about settlement would readily discern the difference.
Creditor's motion also argues that the Court has demonstrated ------------ [4] Creditor estimated a twelve to fifteen day trial just to present its side of the case on its objection to confirmation and motion to dismiss, whereas the norm for a Chapter 13 case during this Court's eleven years on the bench has been far less (Debtor estimated one day for his case, which is much more typical). Creditor made its estimate after having sought dismissal of the case on a summary judgment basis and alleging a lack of disputed factual issues -- when the Court ruled that an evidentiary hearing was required, Creditor took the surprising position that the facts considered by Creditor to be undisputed would require twelve or fifteen days to try, and that such estimate might be increased if the Court permitted Debtor to offer evidence of unclean hands on Creditor's part.
MEMORANDUM DECISION DENYING MOTION TO RECUSE 10 [end of p. 10 of Exhibit A] ---------- bias by ruling in Debtor's favor on various discovery matters, and by basing some of such rulings (as to timing, as opposed to substance) on "improper" factors such as the number of attorneys Creditor has. Creditor cites, inter alia. a hearing on November 20, 2000 at which Debtor's request for extension of the discovery deadline was granted after the Court noted:
... RTC is represented by at least three law firms, maybe four law firms: Ms. Seid's firm, Mr. Hogan's firm, Ms. Kobrin's firm, and Mr. Rosen's firm. Mr. Rosen's firm alone is -- has, I believe, hundreds of lawyers in it. And so we have an enormous team of lawyers who are potentially available to represent the interests of the RTC, and a huge disparity in the economic power of the RTC versus Mr. Henson, who's represented by a solo practitioner who's practicing bankruptcy law in San Jose.
So I think good cause exists to extend the discovery cutoff. I also believe that there is absolutely no prejudice to the RTC. None has been demonstrated in extending the cutoff.
Creditor terms it "bizarre" and "unknown in our jurisprudence" that discovery deadlines should be extended based on factors such as one party having more attorneys than the other. In fact, it is not uncommon for deadlines to be extended and hearing dates continued where one party seeks accommodation for practical reasons (*e.g.*, illness, calendar conflict) and the other is not prejudiced by the change; the matter is within the Court's discretion, *see* *Uncrar v. Sarafite*, 376 U.S. 575, 84 S.Ct. 841 (1964). Creditor points out that Debtor's attorney's request at the November 20 hearing was made because he wanted more time to seek discovery, not because he needed more time to respond to overwhelming discovery requests from Creditor's team of lawyers, but that is irrelevant -- an attorney working alone may legitimately need more time to handle discovery (whether seeking it or providing it) than a group of attorneys
MEMORANDUM DECISION DENYING MOTION TO RECUSE 11 [end of p. 11 of Exhibit A] ------------ needs to handle it among them, and he can properly be given time if doing so does not prejudice the other party. Accommodating harmless requests for extra time cannot in and of itself show bias in favor of the requestor, and it does not do so in this case; the fact that Creditor has many attorneys available to it and Debtor has only one is patent, and this Court's recognition of that reality and its practical effects does not display prejudice against Creditor or favoritism toward Debtor. Indulgences of the kind granted at the November 20 hearing have no connection with or bearing upon the substantive' issues in the case, and therefore could not (when viewed objectively) reflect the Court's position on the law or the facts that are to be litigated.
With respect to rulings in general, it is well settled that, standing alone, they do not constitute grounds for recusal, see, *e.g.*, *U.S. v. Grinnell Corp.*, 384 U.S. 563, 86 S.Ct. 1698 (1966); *Toth v. Trans .World Airlines, Inc.*, 862 F.2d 1381 (9th Cir. 1988); *Taylor v. Regents of the Univ. of Calif.*, 993 F.2d 710 (9th Cir. 1993); *U.S. v. Hernandez*, 109 F.3d 1450 (9th Cir. 1997); *Leslie v. Grupo ICA*, 198 F.3d 1152 (9th Cir. 1999). As pointed out in *Liteky* (at 555),
In and of themselves (*i. e.*, apart from surrounding comments or accompanying opinion), [rulings] cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required ... when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal.
As for the substances of such rulings as have been made so far, they have not favored Debtor more than Creditor, and an objective observer of the rulings made in this case to date would not perceive a display of favoritism toward Debtor. In fact, only
MEMORANDUM DECISION DENYING MOTION TO RECUSE 12 [end of p. 12 of Exhibit A] --------------- sixteen days after Debtor filed bankruptcy. Creditor was granted relief from the automatic stay to liquidate its claim in the then- pending District Court action against Debtor for copyright infringement, so Debtor's disruption of the District Court proceedings by filing bankruptcy was temporary and brief.[5]
The rulings made so far have primarily concerned discovery, and most have been on Creditor's many applications for examinations under Bankruptcy Rule 2004 and several motions to compel. All of Creditor's applications and motions have been granted at least in part, to the extent that they sought orders requiring Debtor, his wife, and others to submit to examination and produce documents, despite frequent objections from Debtor and his wife that Creditor was engaging in "fishing expeditions" and "harassment". For example. Debtor and his wife said that they believed that Creditor had in the past picketed and otherwise brought pressure to bear upon their employers, clients, and associates, and would do so with respect to anyone whose name Creditor learned through discovery -- yet the Court ruled that Creditor had a right to know the sources of Debtor's income (past, current, and projected), Debtor's expenses. Debtor's assets, etc. To accommodate both parties' interests, the Court fashioned orders that required disclosure of names and other relevant information to Creditor's attorneys only, without dissemination to Creditor itself and not to be used for any purpose other than the pending litigation. Creditor has never --------------- [5] Creditor itself acknowledges this (Brief pg. 9, lines 17- 20): "Henson's scheme to misuse the Bankruptcy Court to derail his copyright trial was, however, short lived. By order dated March 13, 1998, the automatic stay was lifted so as to allow trial to proceed before Judge Whyte who then rescheduled Henson's trial to begin May 5, 1998."
MEMORAMDUM DECISION DENYING MOTION TO RECUSE 13 [end of p. 13 of Exhibit A] ------------------ complained that compromises of that kind have hampered Creditor's ability to receive all information to which Creditor is entitled, .though Debtor has consistently complained that the Court has been much too liberal in allowing Creditor to obtain information.
Creditor also contends that the Court has "bought into". Debtor's position that Debtor's alleged bad faith failure to cooperate with discovery has been provoked by Creditor's own actions, though no rulings have been sought or made on that issue. All that has occurred with respect to that subject is a colloquy between the Court and Creditor's counsel during the March 13 hearing -- while estimating trial time, 6 Creditor's attorney said that he allotted no time to trying Debtor's theory of Creditor's unclean hands (that Creditor's conduct toward Debtor was relevant to Debtor's conduct toward Creditor in the bankruptcy case), because he assumed that Debtor would not be allowed to pursue that theory, to which the Court replied that Creditor's conduct toward Debtor might prove relevant to whether Debtor has acted in bad ------------------- [6] It is clear from the transcript of the March 13, 2001 status conference that the Court planned to schedule a timed trial (transcript, pg. 6) and was focused on the amount of time it would take for each side to try the issues regarding Creditor's objection to confirmation and motion to dismiss. This problem was exacerbated by the huge disparity in the trial time estimates -- one day for Debtor, twelve to fifteen days for Creditor. Creditor's attorney Mr. Rosen argued in this context that Creditor's conduct vis-a-vis Debtor was not "triable in this case or relevant". The colloquy between the Court and Mr. Rosen (transcript, pg. 24 line 9 through pg. 27 line 9) makes it clear that the Court's focus was the amount of time needed to try the issues before it, and that the Court made no rulings whatsoever on substantive issues.
MEMORANDUM DECISION DENYING MOTION TO RECUSE 14 [end of p. 14 of Exhibit A] ----------------- faith within the context of the parties' relationship.7 For example, Creditor has claimed that Debtor has acted in bad faith because he has deliberately impaired his employment prospects by telling prospective employers that Creditor might embroil anyone who hires Debtor in the disputes between Debtor and Creditor-- if Debtor were to offer evidence showing that Creditor had interfered with Debtor's employers in the past, that could bear upon the issue of whether it is bad faith to inform prospective employers of a known risk. The issue of bad faith is largely subjective and cannot be addressed in a vacuum, so the conduct of both parties may well be relevant to forming a context in which to assess Debtor's handling of his Chapter 13 case. Whether, and to what extent, Debtor will ultimately be permitted to offer evidence in support of his position that Creditor's acts have contributed to Debtor's conduct remains to be seen if and when that issue is submitted to the Court for decision, but no ruling has yet addressed any of the evidentiary questions.
Creditor's motion refers throughout to this Court's acts and statements being "improper" in various ways. This Court disagrees with that characterization, but "impropriety" (whatever that may be) is not the test for recusal. Rather, the issue posed by §455 (a) is whether a judge's "impartiality might reasonably be questioned" according to an objective standard. An act that may be "improper" under one definition for one purpose may nevertheless cast no doubt upon the actor's impartiality. This Court does not ------------ [7] Whether counsel for Debtor is using the term "unclean hands" appropriately, for the evidence he may seek to introduce in this context, is not before the Court.
MEMORANDUM DECISION DENYING MOTION TO RECUSE 15 [end of p. 15 of Exhibit A] ----------------- believe that it has done anything "improper" in this case but, more to the point, it finds nothing from which an objective viewer could glean a lack of impartiality.
The 1974 amendments of §455 did away with what had previously been considered a "duty to sit", under which a Judge was required to hear a case unless "a clear demonstration of bias or prejudice" was made, *U.S. v. Jaramillo*, 745 F.2d 1245, 1249 (9th Cir. 1984). Nevertheless, as pointed out by the House Judiciary Report on the amendments:
No judge, of course, has a duty to sit where his impartiality might reasonably be questioned. However the new test should not be used by judges to avoid sitting on difficult or controversial cases.
Under the amended version of §455, a Judge retains an affirmative duty not to recuse himself unnecessarily, *see*, *e.g.*, *National Auto Brokers Corp. v. General Motors Corp.*, 572 F.2d 953, 958 (2d Cir. 1978). When events in this case are viewed objectively, they do not cast doubt upon this Court's impartiality, and recusal is therefore not justified.
The Court notes that Creditor's recusal motion was brought shortly after Creditor learned that the unprecedented amount of trial time sought might not be granted, and that evidence of Creditor's conduct *vis-a-vis* Debtor might prove to be admissible. The timing of the motion suggests that Creditor may seek recusal in hopes of receiving a longer trial elsewhere, and/or in order to avoid evidence that Creditor does not want introduced. Such a motive would amount to forum shopping, but it is not necessary to consider Creditor's motive in order to rule on the recusal motion, inasmuch as the motion must be denied on the merits under the
MEMORANDUM DECISION DENYING MOTION TO RECUSE 16 [end of p. 16 of Exhibit A] -------------- applicable objective standard.
For the reasons set forth above, Creditor's motion for recusal is denied. Counsel for Debtor shall submit a form of order so providing, after review by counsel for Creditor as to form. Dated: 6/1/2001
[signature] ARTHUR S. WEISSBRODT UNITED STATES BANKRUPTCY JUDGE
MEMORANDUM DECISION DENYING MOTION TO RECUSE 17 [end of Exhibit A]