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National Abortion Federation v. Center For Medical Progress

United States District Court, N.D. California

June 26, 2017



          JAMES DONATO United States District Judge

         Defendants David Daleiden and The Center for Medical Progress seek to disqualify United States District Judge William H. Orrick, III from continuing to preside over this case. The motion is denied.


         This case began on July 31, 2015, when plaintiff National Abortion Federation (“NAF”) sued The Center for Medical Progress (“CMP”), BioMax Procurement Services, LLC, David Daleiden and Troy Newman. Dkt. No. 1. Judge Orrick was randomly assigned to the case, and he has presided over it continuously ever since. See Dkt. No. 4 (assigning case to Judge Orrick). The case has been actively litigated, to say the least. As of June 8, 2017, the docket contained 430 separate entries. Judge Orrick has issued multiple orders, including a temporary restraining order and a preliminary injunction. Dkt. Nos. 15, 354. The circuit court has been involved as well --more frequently than is the norm at this stage of a civil case -- and has denied a writ of mandamus for a discovery order and affirmed the preliminary injunction, among other actions. Dkt. Nos. 140, 401.

         In the order affirming the preliminary injunction, the circuit court described the individual defendants as “anti-abortion activists” who “misrepresented themselves as representatives of a company, BioMax Procurement Services LLC, purportedly engaging in fetal tissue research.” Dkt. No. 401 at 2. They did this to gain access to NAF's annual meetings. NAF is a non-profit professional association of abortion providers whose mission is “ensur[ing] safe, legal, and accessible abortion care.” Id. at 1-2 (quotations and alterations in original). At NAF's 2014 and 2015 annual meetings, the individual defendants and others posing as BioMax representatives surreptitiously recorded several hundred hours of events, including informal conversations with other attendees. The defendants “attempted in those conversations to solicit statements from conference attendees that they were willing to violate federal laws regarding abortion practices and the sale of fetal tissue.” Id. at 3. The defendants then made some of the recordings public, and “[a]fter the release of the recordings, incidents of harassment and violence against abortion providers increased, including an armed attack at the clinic of one of the video subjects that resulted in three deaths.” Id. On these facts, the circuit court affirmed Judge Orrick's issuance of the preliminary injunction, which enjoined defendants and related individuals from: “(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings; (2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings; and (3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings.” Dkt. No. 354 at 42.

         On May 8, 2017, the circuit court granted defendants' unopposed motion to stay the mandate for the appeal of Judge Orrick's preliminary injunction order, but emphasized that “[t]he preliminary injunction . . . remains in effect.” Dkt. No. 407. After receiving a letter from plaintiff's counsel outlining what could be intentional violations of the preliminary injunction (e.g., that Daleiden's counsel in a separate criminal case had made available on counsel's website copies of the enjoined recordings), Judge Orrick held a telephonic hearing on May 25, 2017. See Dkt. No. 409. Daleiden and his criminal counsel did not appear, in violation of the court's direction (for Daleiden) and invitation (for counsel) that they participate. Id. at 1. In a written order issued the same day, Judge Orrick ordered remedial measures such as taking down from the website all links to recordings covered by the preliminary injunction, and he set a contempt hearing for June 14, 2017, at 2:00 p.m. Id. at 2.

         It was not until June 7, 2017, just seven days before the contempt hearing, that defendants Daleiden and CMP filed the present motion to disqualify Judge Orrick on the basis of bias or prejudice, or the appearance of partiality. Dkt. No. 428. The motion, which was brought under 28 U.S.C. §§ 144 and 455, was the first of its kind to be filed in this nearly two-year-old and highly active case. Judge Orrick promptly referred it for random reassignment to another judge. Dkt. No. 430. Strictly speaking, that was not a legal necessity. Under 28 U.S.C. § 144, reassignment is required only if there is a “timely and sufficient affidavit, ” as determined by the judge to whom the motion is directed. See United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). On this point, Judge Orrick said that he did “not think that [the affidavit] is legally sufficient, ” and he had “concerns about its timeliness and whether the timing is simply an attempt to delay the resolution of the OSC re Contempt.” Dkt. No. 430 at 2. Similarly, motions under 28 U.S.C. § 455 are determined by the judge to whom the motion is directed. See 28 U.S.C. § 455(a) (“judge . . . shall disqualify himself”); see also Sibla, 624 F.2d at 867-68 (Section 455 is “directed to the judge, ” “is self-enforcing on the part of the judge, ” and “includes no provision for referral of the question of recusal to another judge”). Motions under Section 455 must also “be made in a timely fashion.” Davies v. Commissioner of the Internal Revenue, 68 F.3d 1129, 1131 (9th Cir. 1995). Judge Orrick would have been well within the law to deny the disqualification motion outright, yet he chose instead to refer the entire motion under both Sections 144 and 455 to another judge to be selected at random. See Dkt. No. 430 at 2 (citing to the Commentary to Civil Local Rule 3-14 and noting that there is no bar to a judge “likewise referring a motion under Section 455 to the Clerk so that another Judge can determine disqualification.”).[1]

         Undoubtedly this was done out of an abundance of caution and to maximize the parties' and the public's confidence in the judicial process. The Court shares Judge Orrick's skepticism that the affidavit is timely and sufficient, and a good case could be made that this motion should be terminated on that ground alone. Nevertheless, in the interest of completeness and clarity, the Court addresses the substance of the motion. See, e.g., Melendres v. Arpaio, No. CV-07-2513-PHX-MHM, 2009 WL 2132693, at *7 (D. Ariz. July 15, 2009) (“Overall, the law supports the denial of defendants' recusal motion as untimely. However, because the Court must abide by an unwavering commitment to the perception of fairness in the judicial process, it will not deny the petition on the basis of timeliness and will instead address the substantive questions raised by the request for recusal.”); United States ex rel. Hamilton v. Yavapai Community College District, No. CV-12-08193-PCT-PGR, 2014 WL 12656540, at *2 n.4 (D. Ariz. Dec. 9, 2014) (noting that “for purposes of facilitating the consideration of the merits of the [recusal] motion, ” court “assumes that the motion was timely filed notwithstanding that this action is now going into its third year of litigation.”).


         Defendants invoke 28 U.S.C. §§ 144, 455(a) and 455(b)(1) for disqualification. See Dkt. No. 428 at 1 nn.1-2. Section 144 provides that “[w]henever 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.” Section 455(a) states that “[a]ny . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” And under Section 455(b)(1), the judge “shall also disqualify himself . . . [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

         While the procedure for motions under Section 144 and Section 455, respectively, is slightly different, the governing standard is the same. Our circuit has held that “[t]he test for personal bias or prejudice in section 144 is identical to that in section 455(b)(1), ” and “section (b)(1) simply provides a specific example of a situation in which a judge's ‘impartiality might reasonably be questioned' pursuant to section 455(a).” Sibla, 624 F.2d at 867. Consequently, where, as here, the only question is whether a district judge should be removed from a case for personal bias or prejudice under Sections 144, 455(a) and 455(b)(1), the “same substantive standard will be applied to each section.” Id. That standard is an objective one and asks “whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” United States v. Holland, 519 F.3d 909, 913-14 (9th Cir. 2008). The “reasonable person” for this inquiry is not “someone who is ‘hypersensitive or unduly suspicious, ' but rather is a ‘well-informed, thoughtful observer.'” Id. at 913 (citations omitted).

         In evaluating recusal or disqualification, the Court is mindful that 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.” Clemens v. U.S. Dist. Court for Central Dist. of Cal., 428 F.3d 1175, 1179 (9th Cir. 2005) (quotation omitted). Our circuit also holds that “section 455(a) claims are fact driven, and as a result, the analysis of a particular section 455(a) claim must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the unique facts and circumstances of the particular claim at issue.” Id. at 1178.


         Defendants seek disqualification on the basis of three instances of Facebook activity by Judge Orrick's wife. In one instance, defendants say she “pinkified” her Facebook page and added “I stand with Planned Parenthood” as a Facebook profile picture overlay sometime in the summer or fall of 2015. Dkt. No. 428 at 3. Mrs. Orrick's ...

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