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Sevier v. Hickenlooper

United States District Court, D. Colorado

January 16, 2018

CHRIS SEVIER, JOAN GRACE HARLEY, JOHN GUNTER, JR., and WHITNEY KOHL, Plaintiffs,
v.
JOHN HICKENLOOPER, in his Official Capacity as Governor of Colorado, CYNTHIA COFFMAN, in her Official Capacity as Attorney General, MATT CRANE, in his Capacity as Supervisor Marriage License and County Rec of Arapahoe County, STACY WORTHINGTON, in her Capacity as Assistant Attorney General in Colorado, and AUBREY ELENIS, Director of the Colorado Rights Division, Defendants. JOAN GRACE HARLEY, CHRIS SEVIER, JOHN GUNTER, JR., and WHITNEY KOHL, Plaintiffs,
v.
MASTERPIECE CAKE SHOP LTD. and JACK PHILLIPS, Defendants.

          ORDER DENYING MOTIONS TO RECUSE

          WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE.

         Now before the Court are the “Motion to Recuse the Magistrate and Motion to Reassign” filed by Plaintiff Sevier (“Sevier”) in Case No. 17-cv-1750-WJM-NYW (ECF No. 94) and the “Motion to Recuse the Magistrate” filed by Sevier in Case No. 17-cv-1666-WJM-NYW (ECF No. 90) (together, the “Motions”). The Motions are substantially identical, were filed at the same time, and both seek the recusal or disqualification of U.S. Magistrate Judge Nina Y. Wang and the undersigned under 28 U.S.C. § 455(a). The two Motions are properly resolved together and both are denied.[1]

         Initially, both Motions could be stricken for violation of the Court's Order on Pending Filings and Case Procedures, which ordered Sevier and other Plaintiffs to “immediately desist from any further ad hominem attacks, insults or threats against any judicial officer of this Court in their filings.”[2] These Orders were entered on September 29, 2017. Less than two weeks later, Sevier filed the present Motions, which consist of almost nothing but groundless and repetitive ad hominem attacks.[3] Sevier's Motions manifestly reflect a willful violation of the Court's Order, and also violate D.C.COLO.LCivR 7.1(i), and are therefore subject to being stricken and sanctioned.

         However, to avoid expending further resources on re-filed motions, the Court will briefly address Sevier's Motions on their merits-or rather, the lack thereof. After sifting through Sevier's 30 full pages of repetitive accusations-and overlooking his comical abuse of lengthy and tangential footnotes violative of both the Court's page limitations and its prohibition against “verbose, redundant, ungrammatical, or unintelligible” motions, D.C.COLO.LCivR 7.1(i)-Sevier's arguments are reducible to two objections, both meritless.

         Sevier's overarching argument attacks case management actions taken by the Court with which he disagrees, claiming they reflect bias or misconduct. Without belaboring the issue, there has been no error in Judge Wang's handling of these cases, much less anything that supports Sevier's accusations of bias and misconduct. The Court has already rejected Sevier's oft-repeated objection to Judge Wang's Order striking Plaintiffs' motions for summary judgment, and there was no error in this action. (ECF No. 80 at 4-6.) Sevier's other complaint is that Judge Wang somehow erred when she entered an Order to Show Cause cautioning Plaintiffs Kohl and Harley that failure to appear as ordered at a status conference could lead to dismissal without prejudice for failure to prosecute. (ECF No. 72.) This was entirely proper under Federal Rule of Civil Procedure 41(b) and D.C.COLO.LCivR 41.1. Clearly, Sevier believes in the rectitude of his own view that he should be permitted to act on behalf of the other pro se Plaintiffs in this action. But, just as clearly, since it is undisputed that Sevier is not legally permitted to practice law, Sevier's view is wrong.[4] See, e.g., 28 U.S.C. § 1654; Flymbo v. State Farm Fire & Cas., Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (“A litigant may bring his own claims to federal court without counsel, but not the claims of others.”); Silvious v. Coca-Cola Co., 893 F.Supp.2d 233, 236 (D.D.C. 2012) (“it is long established that a pro se litigant generally cannot represent the interests of other individuals, and the federal courts have consistently rejected attempts at third-party lay representation” (gathering sources) (internal quotation marks and citations omitted)); D.C.COLO.LAttyR 3(c) (“An attorney who is not in good standing shall not practice before the bar of this court.”); cf. Luis v. United States, 136 S.Ct. 1083, 1089 (2016) (“A [criminal] defendant has no right . . . to an attorney who is not a member of the bar.”).

         In any event, even if Sevier could point to some error or undue harshness in the Court's rulings (which he cannot), this provides no basis for disqualification. It is well-established that “[a]dverse rulings alone are insufficient grounds for disqualification, as is evidence that the judge criticized or was angry with a party.” In re Am. Ready Mix, Inc., 14 F.3d 1497, 1501 (10th Cir. 1994) (“Ready Mix”).

         Sevier's other argument for disqualification is his claim that both Judge Wang and the undersigned are biased against the Plaintiffs, due in large part to a perceived alignment with the American Civil Liberties Union. Notwithstanding the fact that the ACLU is neither a party nor involved in these cases in any way, Sevier still seems to view it as a lurking bogeyman, the mere mention of which should, in his view, result in per se judicial disqualification.

         Suffice to say, Sevier's argument is unsupported even by any factual allegation that either the undersigned or Judge Wang have any present or improper affiliation with the ACLU. The very general comments attributed to Judge Wang in a bar magazine interview nowhere mention the ACLU and have nothing to do with any party, lawyer, or legal issue in these actions. Likewise, Sevier's reliance on reporting in The Atlantic Monthly from the time of the undersigned's Senate confirmation in 2011, at the most reflects Sevier's own social and political views (and perhaps those of then-Senator Sessions), but neither reflects “new evidence, ” as Sevier claims, nor purports to reflect any statement or view of the undersigned. (See ECF No. 94 at 9-11, 15-16.) Sevier's claims raise, if anything at all, “the merest unsubstantiated suggestion of personal bias or prejudice, ” making recusal inappropriate. United States v. Wells, 873 F.3d 1241, 1251 (10th Cir. 2017).

         Sevier's argument is also unsupported by any legal authority. The relevant inquiry under § 455(a) is “whether a reasonable factual basis exists for questioning the judge's impartiality.” Wells, 873 F.3d at 1251. Even if Sevier's argument had raised any factual basis, no authority suggests an attenuated or past connection to a non-party organization requires recusal in cases where issues arise on which the organization takes positions. See Wells, 873 F.3d at 1253 (finding “no case . . . even suggesting that recusal is required” where judge who presided over criminal trial was personal friends with lawyer for an advocacy organization that opposed the protest activity for which defendant was convicted); Armenian Assembly of Am., Inc. v. Cafesjian, 783 F.Supp.2d 78, 91 (D.D.C. 2011) (“a judge's past membership in organizations that advocate for positions advanced by a party does not necessarily require recusal” (collecting cases)), aff'd, 758 F.3d 265 (D.C. Cir. 2014); cf. Perry v. Schwarzennegger, 630 F.3d 909 (9th Cir. 2011) (Reinhardt, J.) (recusal not required in challenge to state ballot measure related to same-sex marriage on grounds that judge's wife was executive director of the ACLU of Southern California; “the organization . . . not having participated in any filings before this court, has no more to gain from the outcome . . . than any other person or entity with strong views on the subject but not directly involved with the litigation”).

         Finally, Sevier's Motions were filed months after these actions were initiated, and after Plaintiffs had made numerous prior substantive filings, but almost immediately after the Court's Orders on Pending Filings and Case Procedures. (See ECF Nos. 80, 94.) This confirms that Sevier's claims have nothing to do with any good-faith claim of bias, and everything to do with Sevier's displeasure with the Court's rulings. This defeats Sevier's argument for disqualification. Ready Mix, 14 F.3d at 1501; Perry, 630 F.3d at 916 (“each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision” (quoting legislative history of § 455)). Moreover, Sevier's present Motions confirm Plaintiffs' own frequent representations to the Court-often conveyed as threats-showing that Plaintiffs are engaged in blatant judge-shopping.[5] This even further calls for Sevier's Motions to be rejected. See Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (§ 455(a) is not “intended to bestow veto power over judges or to be used as a judge shopping device. . . . a judge has as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require”).

         For the reasons set forth above, Sevier's “Motion to Recuse the Magistrate and Motion to Reassign” filed in Case No. 17-cv-1750-WJM-NYW (ECF No. 94), and his “Motion to Recuse the Magistrate” filed in Case No. 17-cv-1666-WJM-NYW (ECF No. 90) are both DENIED.

---------

Notes:

[1] Unless noted otherwise, the Court's citations herein are to docket entries (“ECF No.”) in Case No. 17-cv-1750-WJM-NYW (ECF No. 94). The relevant filings in Case No. 17-cv-1666-WJM-NYW are largely parallel, and the Court's ...


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