As you have read in these pages, Joe Arpaio through his attorney, has filed a motion to disqualify federal district judge G. Murray Snow, in the racial profiling case of Melendres v. Arpaio. The motion, “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow,” invokes two federal statutes: 28 USC § 455 and 28 USC § 144. You can read about those in my article, Sheriff Joe cries “uncle”!
Invoking § 144 is a problem. Here is the statute:
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.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Note the highlighted portion: “A party may file only one such affidavit in any case.” The problem is that this not the first § 144 motion filed by Arpaio in this case. Let’s set the Wayback machine a thousand documents or so back in the Melendres docket to February 23, 2009, when the Melendres case was under a different judge, U.S. District Judge Mary Murguia. Arpaio filed a motion for recusal then:
Defendants Joseph M. Arpaio, Maricopa County, and the Maricopa County Sheriff’s Office, pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455, and also pursuant to Rule 83.5, Local Rules for the United States District Court for the District of Arizona, respectfully submit this Motion for Recusal.
That’s why the current judge is someone without a Latino surname, G. Murray Snow. Filing TWICE under 28 USC § 144 appears to this writer to be a huge legal blunder.
Update:
It appears that this issue was not lost on Judge Snow, as we now learn, according to the Phoenix New Times reporting on the status conference:
However, he [Judge Snow] noted that the defendants in Melendres already had an earlier judge in the case, Mary Murguia, recuse herself for cause, and that the defendants may only be allowed to have one judge so removed per case.
At this point, the Judge hadn’t read the motion for recusal.
I can’t wait to hear what one of our real lawyers has to say about this.
It certainly looks like Arpaio’s attorney has messed up.
Awesome find, Doc!
It’s not Klayman who filed this? Are all of Arpaio’s attorneys this incompetent?
Well, there was the one who advised against using this argument.
No. Klayman is not representing Arpaio in Melendres.
The first legal blunder, was when Arpaio let Snow’s injunction order fall through the cracks and failed to comply. Oooops!
Arpaio’s legal dream team filed for recusal, after Klayman and Moseley did the same thing and were denied by the court when they tried to intervene in the case.
It was the Arizona Republic who noted that there had been a previous recusal in the case. My research showed that the motion was made under Section 144, and connected the statute.
There is still an intact motion under Section 455. The original recusal motion was file by Mr. Casey, who has withdrawn from the Arpaio defense. Still, the current legal team should have known about the prior recusal, and I am wondering if this opens them up to sanctions from the Court for knowingly pleading bad law. The motion included certificates of good faith from the Attorneys.
Of course all that is moot if I’m reading the law wrong.
Could the contempt hearing be considered a separate “matter”? A final (I _think_) judgment was entered, so the enforcement action might not be part of the case from which the previous judge recused herself.
We’re still talking about a motion to recuse or disqualify in Melendres v Arpaio. The hearings on civil contempt are in Melendres v Arpaio,
What I read suggests that the statutes are enforced strictly. These motions for recusal have the same 2007 case number. It may well be that if there were a referral for criminal contempt, then it might be a different case, but Snow has already said that such a trial would be given to another judge.
The more I read up on this, the more inclined I am think that there will be no recusal.
I think Shurfjoke knows his number is up, and just wants to cause the court as much grief as he can, before the hammer comes down.
This makes sense.
Thanks for making it clear that if one judge is removed for cause,
the next judge on the case gets blanket immunity.
Yes, that is my thought too, but like you, IANAL.
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Your statement is utter hogwash. What motivates you to blatantly lie like that?
No, it means the party only gets one automatic recusal (although it’s not quite a freebie, since the attorneys have to declare good faith and could be sanctioned if the reasons given are spurious). After that, they have to use other sections to request recusal, which have a higher bar to meet.
Doc, with the caveat that I have no real experience with sections 144 and 455 procedures, I think you are right that Arpaio was entitled to only one recusal under 144. Seems to me, section 144 somewhat parallels the rules in many state courts–that a party gets one relatively-easy substitution of judge per case; in many state courts one doesn’t even have to show cause. After that, the procedures for getting rid of another judge may be more complicated.
The procedures for Section 144 are relatively easy. Although 144 requires a showing of cause by affidavit, the allegations in the affidavit are taken as true. Therefore, it only makes sense that the Code should limit the use of this procedure to once per case.
Seems to me, it is mostly a strategic blunder. Arpaio now has his own affidavit on the record making accusations against the Judge, which certainly can’t endear him to Judge Snow. If counsel had filed only under section 455, Arpaio’s affidavit would not have been required. In short, with this affidavit, Arpaio personally and unnecessarily draws heat to himself (rather than counsel drawing the heat). IMO, counsel should be kicking themselves for letting this happen. I also note that their expert’s affidavit says section 144 applies, but of course that affidavit was written on behalf of Montgomery (who had not previously filed a section 144 affidavit).
Moreover, if I’m understanding this stuff properly, Montgomery is not a “party,” he is just a guy who thinks he might be impacted by the release of information. And I’m going out on a limb using “thinks” in that sentence.
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Montgomery is not a party. He tried to intervene in the case, but his motion to do so was denied.
Judge shopping.
I’m guessing radial profiling has something to do with whitewalls? 😉
And why the statute requires that the attorneys in the case file a “certificate of good faith” along with the party’s affidvit. I wonder if Arpaio’s attorneys will face sanctions for filing a certificate of good faith when they should have known Arpaio’s affidavit was improper.
What I read says that Section 144 has fallen into disuse, although it’s not uncommon for it to be tacked onto a Section 455 motion. The prior judge in Melendres dismissed the Section 144 motion, but accepted the general public perception test in 455, just barely.
Otherwise, it could be interpreted as judge shopping, correct?
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Seems to me it is within the Judge’s power to do so. And they have other problems. Did you hear McDonald’s statement to Lemons after the April hearing? He said (emphatically), “I heard comment or commentary from so-called lawyer experts saying gee the judge should recuse himself. That’s ridiculous. Of course he shouldn’t. People suggest we should now get rid of Judge Snow. Why? It was an inquiry, it ended there, it was not any kind of witch hunt, case closed.” https://soundcloud.com/stephenlemons/melinaprilwma
And then there is Casey’s memo advising Arpaio that the Grissoms’ allegations are so fundamentally flawed that Casey expected to face Rule 11 sanctions if he tried to use them. And since Casey is now subject to deposition and being called as a witness in court, this can only get worse.
A few other thoughts:
1) I don’t see how the Judge’s wife can be considered a likely “material witness” in the contempt proceedings. Who plans to call her as a witness to prove/disprove contempt? Certainly not Plaintiffs. Do Defendants plan to subpoena her? Do Defendants plan to subpoena the Grissoms? They don’t even bother to say.
2) I don’t see how Judge Snow’s line of questioning is a big deal. First, there is no jury in the room that could be improperly prejudiced by the judge’s questioning of the Defendants. And all this talk about leading questions is silly–to my knowledge, the rule against leading questions only applies when a lawyer is questioning his/her own witness (i.e., the lawyer has to let the client or friendly witness testify in their own words, and can’t try to coach them on the stand by giving them “yes or no” questions).
3) I suppose they have some argument re not getting notice that the Judge would question Defendants about the Grissom and Montgomery investigations. But that argument is very weak. The judge gave Defendants an opportunity to be heard in their defense, and will continue to do so. Moreover, counsel had the opportunity to make timely objections to Judge Snow’s line of questioning–but did not. Also, re the documents the Judge ordered to be produced, the Judge said he would entertain any objections that Defendants may make. A section 455 motion is not the place to raise such objections.
4) A judge generally has a lot of latitude/discretion when it comes to civil contempt proceedings. Afterall, it’s really his only mechanism for enforcing his orders, and it’s to be expected that the Judge may dislike a contemptuous party and show some irritation–that does not amount to actionable bias.
5) Given Casey’s and McDonald’s prior statements, this whole motion absolutely reeks of Arpaio demanding that counsel plow ahead against their better judgment. I can hardly wait to see Plaintiff’s response. I will be surprised if they don’t move for Rule 11 sanctions.
How very “Continental” of you
I always enjoy your input on the legal stuff. I can’t wait to see this play out. 🙂
I agree. the objection pretty much amounts to we wish you would not have gone there. Arpaio has already admitted to contempt. Judge Snow is allowed to find out why and what Arpaio was up to when he was snooping around anything related to Judge Snow.
Yep, I would not be surprised if that happens. Also, remember Arpaio also made this pretty blatant end run at Judge Snow through the motion to intervene and recuse by Montgomery and Klayman. That motion looks even all the more suspicious in light of the fact that we know Arpaio had already played the free recusal card the one time he was allowed.
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Good article at http://kjzz.org/content/143345/arpaio-wants-judge-remove-himself-racial-profiling-case.
“McDonald denied coordinating with Freedom Watch, but said he and the other attorneys were influenced by that organization. The motion McDonald filed copied a declaration by Chapman University School of Law Professor Ronald Rotunda that originally appeared in Freedom Watch’s filing.”
“’We did look at some of their materials,’ McDonald said. ‘I spoke to Professor Rotunda to verify myself about some of the issues.’”
The judge refused to recuse himself!
Send money. Rinse. Repeat.
One of the few times I enjoy reading those words.
http://www.azcentral.com/story/opinion/op-ed/steve-benson/2015/05/27/steve-benson-joe-arpaio-and-judge/27998097/
Not necessarily Doc. Based on the motion, they seem to be arguing as a matter of law, Judge Murray Snow needs to recuse, not withstanding, the language specified in the statute.
I think I need one of our multi-lingual commenters to translate this for me. Is anyone here conversant in “johnspeak”?
John, just shut the hell up. You’ve been wrong about everything thus far. Your insight into ANYTHING, is about on par with Nancy Owens. Honestly, if you told me the sky is blue, I’d think the information suspect, simply because YOU said it. You are that consistent in being wrong.
A judge has a duty to hear the cases assigned to him. He cannot recuse himself on a whim–it must be a matter of law.
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Otherwise, e.g., Taitz and Klayman cases would turn into a game of hot potato among the judges.
Maybe Arpaio should recuse HIMSELF.
http://www.gannett-cdn.com/-mm-/bae4bb0b039c8c4e5041bc2c86bb5d5e6ab47e86/c=2-0-1199-900&r=x404&c=534×401/local/-/media/2015/05/27/Phoenix/Phoenix/635682881397023786-BensonCOLOR–Arpaio-Conflict-of-Interests-05-27-n15.jpg
Wow! Someone has found a way to make me loathe clowns even more!
Judge Snow is a George W. Bush nominated judge. There are nine Barack Obama nominated judges in the Arizona district and two Bill Clinton nominated judges. Recusal could be a really bad deal for Sheriff Arpaio.
Since this trial is being held in Phoenix, it will probably not get moved to Tucson. In Phoenix there are four Barack Obama nominated federal judges, two other George W. Bush nominated judges and one Bill Clinton nominated judge. Chances are still good that a Judge Snow recussal will mean a judge nominated by a Democrat wouldl take over the trial.
Poor John, he just can’t win.
If John and Sheriff Joe want to trade a George W. Bush judge for a Barack Obama judge, that’s o.k. with me.
Arpaio Exam by Court, 4/23/15, Page 653-654, Court Transcript.
[Corporal Zullo is right in the middle of all of this…….]
Excerpt:
Q. [Court] “Did you keep any of the materials that Mr. Montgomery has provided you?
A. [Arpaio] “I don’t have them.”
Q. “Who Does?”
A. “I believe Zullo does.”
Q. “And is he subject to your control — “
A. “Yes.”
Q. “ — as a member of your posse?”
A. “Yes.”
Q. “I’m going to direct that you tell Mr. Zullo that he keep all of those documents. All right?”
A. “He what?”
Q. “I’m going to direct that nothing pertaining to any of this investigation be destroyed, including confidential informant numbers.”
Q. “Do you understand that direction?”
A. “Yes.”
Q. “Who else was aware of these investigations within the MCSO?”
A. “I’m not sure. Because of the sensitivity, we were trying to keep it quiet.”
[But what about all the people who were given the information for safe keeping to be distributed if something happened to Arpaio, Zullo and Gallups? This according to Gallups radio broadcast.]
The transcript of Arpaio’s testimony is available from the Fogbow.
this was interesting:
Q. Did you keep any of the materials that Mr. Montgomery has provided you?
A. I don’t have them.
Q. Who does?
A. I believe Zullo does.
http://www.scribd.com/doc/266835557/2015-04-23-Transcript-Melendres-Et-Al-V-Arpaio-Et-Al-Evidentiary-Hearing-Day-3-01
I was surprised how often Zullo was mentioned.
gorefan,
“I was surprised how often Zullo was mentioned.”
Me too. A perfect subject for a deposition I suspect.
I was NOT surprised by the number of times Arpaio stated he had no recollection of pretty much anything.
I WAS surprised by his outright fib that he ‘Doesn’t give orders, it’s not the army you know’…So Joe, do you just ask ‘Pretty Please’ from your employee’s…?
What I found bizarre was the Zullo was the one holding the Montgomery evidence, not Arpaio. I was a bit confused about who got paid for what, though.
Well, he’s done a swell job of keeping the Hayes memo hidden. Maybe Arpaio figured that “secure records storage” was the only thing he was good for.
I don’t think any judge will let Joe off the hook (or go harder on him than he deserves), regardless who appointed him. But Joe could paint an “Obama judge” as “libruls are out to get me, send $$$” much better than with a Bush appointee.
Interesting statement by Sheridan:
Judge Snow. Did you ever hear him describe it as an investigation of me to anyone at the MCSO?
Sheridan: No, sir. As a matter of fact, I made quite sure, and I believe in the presence of the sheriff, with detective –Sergeant Anglin and Detective Mackiewicz when this information came forward that they were not, it was — and I don’t normally do this because it’s not my style, but I told them: This is a direct order from me. You are not to investigate any information involving Judge Snow. If any further information comes up, I want to know immediately. Nothing ever did materialize.
Hard to believe.
“I told those men not to touch Santiago.”
Dr. Conspiracy
May 28, 2015
“What I found bizarre was the Zullo was the one holding the Montgomery evidence, not Arpaio. I was a bit confused about who got paid for what, though.”
This is classic, “I hear nothing. I see nothing. I know nothing” posturing by Arpaio. Remember when he said on a radio interview that he hadn’t read the Reed Hayes’ report? What would you bet that he still has never seen the RH report? It’s pretty clear that Zullo is right in the middle of this mess. Depose Zullo!
Notice someone who was not present to receive that directive?
Reality Check
May 28, 2015
“Notice someone who was not present to receive that directive?”
gorefan: “This is a direct order from me. You are not to investigate any information involving Judge Snow.”
Commander Mike Zullo was not apparently there. Even if he were present, Arpaio can counter Sheridan’s order at anytime and apparently did, if Sheridan was telling the truth. Within the first 50 pages of documentation obtained by the court learned the Seattle Operation was developing a bogus conspiracy to discredit Judge Snow and his court. Can Sheridan say perjury?
Scene from a parallel universe…
Sheriff Arpaio: You want answers?
Judge Snow: I think I’m entitled.
Sheriff Arpaio: You want answers!?
Judge Snow: I want the truth!!
Sheriff Arpaio: You can’t handle the truth!! Judge Snow, we live in a world that has birthers, and those birthers have cash that I need. Who’s gonna raise those funds? You? You, Mr. Lemons? I have a greater responsibility than you can possibly fathom. You weep for Melendres and you curse the MCSO. You have that luxury. You have the luxury of not knowing what I know, that racial profiling, while illegal, gets me votes. And my existence, while grotesque and incomprehensible to you, puts Spanish-speaking people in prison where they belong! You don’t want the truth, because deep down in places you don’t talk about at parties, you want me arresting those Latinos. You need me and that Tent City. My deputies and I use words like “Mexican bitches,” “wetback,” “infestation.” We use these words as the backbone of a life spent abusing power, misusing funds, staging assassination plots, and arresting political opponents. You use them as a punchline. I have neither the time nor the inclination to explain myself to a judge who rises and sleeps in a comfy bed, under a blanket that doesn’t smell like rat urine, and then questions my God-given authority to create unconstitutional jail conditions for Mexican tourists! I would rather you just said “thank you” and went on your way. Otherwise, I suggest you join a posse and start investigating Obama’s eligibility. Either way, I don’t give a damn what you think you are entitled to!
Are you sure? I’ve been checking the news, and there’s no mention of it. I thought that would be a big enough development to at least rate a mention by Lemons.
Here is Snow’s order, filed Friday afternoon:
In light of the Motion for Recusal or Motion to Disqualify filed this morning,
IT IS HEREBY ORDERED vacating the Status Conferences set for May 29, June 5 and June 12, 2015. The Court shall issue no further orders until the Motion is fully briefed and/or a ruling has been issued.
IT IS FURTHER ORDERED directing the parties to continue to hold the dates in June for the continued civil contempt hearings or for discovery, until further notice of the Court.
IT IS FURTHER ORDERED directing the parties to inform the Court of their intention to file responses to the Motion on or before May 29, 2015 and submit a joint expedited schedule for responses and/or replies.
Dated this 22nd day of May, 2015.
Honorable G. Murray Snow
Initially, I was completely puzzled by McDonald being front-and-center on a hail Mary recusal motion. (Because McDonald is Arpaio’s criminal not civil attorney, and the motion’s arguments are contradicted by McDonald’s own statement to Lemons).
Now, I’m thinking he may have done so in anticipation of criminal proceedings. I mean, in criminal court he is gonna want to try to get evidence suppressed as much as possible (that’s what criminal attorneys do) and he’ll want to argue that Arpaio was essentially compelled to incriminate himself–i.e., to involuntarily testify against himself and produce documents–by a biased judge.
They are doing a damn job of that already with the Bush nominated judge!
J.D. Sue,
“Now, I’m thinking he may have done so in anticipation of criminal proceedings. I mean, in criminal court he is gonna want to try to get evidence suppressed as much as possible (that’s what criminal attorneys do) and he’ll want to argue that Arpaio was essentially compelled to incriminate himself–i.e., to involuntarily testify against himself and produce documents–by a biased judge.”
As I recall, Judge Snow stated early on that the defendants were free to exercise their right against self incrimination. None of the attorneys for the defense made a peep when Judge Snow began his questioning of Arpaio while under oath. Arpaio spilled the beans. Things are not going well for Arpaio.
Obviously IANAL and this may have been covered already but didn’t Arpaio have the option of taking the 5th when on the witness stand? If not, can you explain why? Thank you!
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Right. And during the judge’s whole line of questioning, they never made (preserved) a single objection on ANY basis. Objections have to be timely; snooze ya lose. And rather than even trying to make a good excuse for snoozing, they just attack/blame the judge.
My guess is that Arpaio failed to tell his attorneys about the Montgomery-related intrigue/documents, so McDonald et al were completely blind-sided until well after the April hearing. A real client from hell.
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Yes.
Also, without even taking the 5th, his lawyers might have objected to the questioning on other bases, e.g., objecting that the judge’s questions were not relevant or that they didn’t have enough notice that those questions would be asked. When a lawyer raises an objection, even if the judge overrules the objection, the lawyers can still bring it up later (e.g., on appeal) and argue that the judge erred by overruling the objection. But if the lawyer fails to timely object, they blew it. That is why it is pretty pathetic that his lawyers are now–a month later, in a motion for recusal–complaining for the first time that the questions were not relevant and without sufficient notice.
Thank you. That’s what I didn’t understand, why they didn’t object at the time the questions were asked. They had the opportunity yet as you said, they blew it. For that reason alone, I wish they weren’t able to bring it up on appeal.
J.D. Sue
“My guess is that Arpaio failed to tell his attorneys about the Montgomery-related intrigue/documents, so McDonald et al were completely blind-sided until well after the April hearing. A real client from hell.”
Arpaio’s attorneys were not on a need to know basis. Yes, a very real client from hell.