J.P. STADTMUELLER, District Judge.
The above-captioned cases come before me on a Milwaukee Deputy City Attorney's separately-filed motions, which request that I disqualify myself from further participation in each of these cases. The cases all stem from alleged strip searches conducted by officers of the Milwaukee Police Department. I have been assigned
In my role as presiding judge, I have rendered decisions that are unfavorable to the City.
Along the road, I have also admonished the City's attorneys to conduct themselves professionally and in accordance with my expectations. Shortly after I began receiving strip search cases, I made clear that I intended to resolve the cases expeditiously, noting:
(Case No. 13-CV-1114, Docket # 20 at 4:5-5:4). In each of the respective trial scheduling orders in these cases, I stated that, "while every litigant is entitled to their day in court, they are not entitled to intrude upon someone else's day in court." (See, e.g., Case No. 13-CV-769, Docket # 31 at 7; Case No. 13-CV-1114, Docket # 17 at 7; Case No. 13-CV-1224, Docket # 25 at 7). Consistent with these admonitions, I fully expected the City Attorney's office to move the cases along expeditiously. I also expect every lawyer appearing before me, as an officer of the court, to adequately prepare for trial, to work cooperatively with opposing counsel, and to avoid submitting poorly-supported legal arguments. To be sure, adversaries and litigants remain free to carry on as they would please in protracting their dispute(s). However, the wise exercise of judicial stewardship of limited taxpayer resources will not do service in providing a forum or safe harbor to do so.
Unfortunately, representatives of the Milwaukee City Attorney's office have occasionally failed to meet my expectations. Despite an Assistant City Attorney having agreed "wholeheartedly on getting these [cases] resolved as quickly as possible" (Id. at 5:5-8), the City has often found it difficult to cooperate with the plaintiffs, resulting in significant wasted time and resources. Thus, on several occasions, I let the Assistant City Attorneys know that they were not meeting my expectations. But, throughout the course of this litigation,
Of course, what I know to be true is ultimately irrelevant to resolution of the disqualification motions at hand, as I must employ an objective standard to resolve them. I relay my perspective on this only to make clear that, as I do in every case, I have approached each case fairly. Suffice it to say that I was more than surprised — indeed, taken aback — by the City's motions. To be sure, in what will soon become 28 years as an Article III district judge, I will have been assigned well over 7,000 civil cases, including more than 70 involving the City of Milwaukee and/or its agents and employees as named parties. Yet, it appears that the motions before me today represent but only the second instance of a kerfuffle in pending civil litigation in which I have been asked to step aside. The first dates all the way back to May of 1988 in Bassler v. Eisenberg, Case No. 87-CV-1345. More on Bassler later.
In addressing each of the pending motions, I will first provide a bit of background about the separate cases and the City's motions. I will then discuss the legal standard governing disqualification requests. Finally, I will apply that standard to the City's pending motions. As appears from the analysis of both the relevant facts and the applicable law which follows, my fairness and impartiality cannot reasonably be questioned. Thus, I am obliged to deny the City's motions that I be disqualified.
Each of the plaintiffs in the above-captioned cases — Leo Hardy, Chavies Hoskin, Edward Wright, and Jermain Caine — alleged that they had been strip searched by police officers employed by the Milwaukee Police Department ("MPD"). The cases were assigned to me, though each is at a different stage of proceedings.
The newest case — Caine v. Milwaukee, Case No. 14-CV-1548 — is scheduled for a trial to begin on January 11, 2016.
Wright v. Vagnini, Case No. 14-CV-1224, is in a posture similar to Caine. Wright is set for trial to begin on October 19, 2015, and there are no dispositive motions outstanding.
Hoskin v. City of Milwaukee, Case No. 13-CV-920, was originally assigned to me, and I denied the City's motion for judgment on the pleadings. I then declined to adjourn the July 14, 2014 trial date in the case, after which the parties agreed to consent to proceed before Magistrate Judge William Callahan. Magistrate Callahan adjourned the trial date and presided over the case until he relinquished it in preparation for retirement. At that juncture, with the City's motion for summary judgment pending, Mr. Hoskin refused to proceed before Magistrate Judge William Duffin. As a result, the case was returned to me.
The oldest case, Hardy v. City of Milwaukee, Case No. 13-CV-769, was tried to a jury. On August 7, 2014, the jury returned a verdict, finding that Mr. Hardy had been illegally stopped and searched but not illegally strip-searched. The jury awarded Mr. Hardy a total of $506,000.00,
Finally, I received three other strip search cases that are no longer pending before me (and so are not subject to the City's disqualification motions). Two of those cases are now closed: Venable v. City of Milwaukee, Case No. 13-CV-1114, and Bohannon v. City of Milwaukee, Case No. 13-CV-1224. In Venable, I denied the City's motion for summary judgment. The City appealed that decision, but reached a settlement with the plaintiff while the appeal was pending. In Bohannon, I also denied the City's motion for summary judgment (which was identical in many ways to the City's motion for summary judgment in Venable). The City did not appeal my order in Bohannon. Instead, the parties prepared to go to trial. I held a final pretrial conference, at which I made statements critical of the City's approach to handling the case. Those statements also form a portion of the basis for the City's pending motions. In the end, Bohannon settled prior to trial and was dismissed. In the third case, Freeman v. City of Milwaukee, Case No. 13-CV-918, I denied motions from the City for a more definite statement and for judgment on the pleadings. The parties thereafter consented to proceed before Magistrate Judge Nancy Joseph; that case remains pending.
The City filed four separate motions to disqualify me,
In the balance of today's order, I will refer to the statements in question as the Flynn statements, the Vagnini statements, the Bohannon statements, and the Caine statements, respectively.
(Case No. 13-CV-769, Docket # 251 at 49 n. 19).
(Id.) (emphasis supplied in City's motions). In its motions, the City focuses primarily on the three final paragraphs that I just quoted.
(Id.) (emphasis supplied in City's motions).
The City's motions assert: (1) that the Flynn statements and Vagnini statements derive from extrajudicial sources; and (2) that the Bohannon and Caine statements would cause a reasonable person to question whether I could be impartial in reaching legal determinations on the issues before me.
The plaintiffs in each case filed responses to the City's motions, and the City filed practically identical replies thereto.
28 U.S.C. § 455(a), pursuant to which the City has moved for disqualification, provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The Supreme Court elaborated upon this standard in Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). The Supreme Court noted that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555, 114 S.Ct. 1147 (citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)). Rather,
Liteky, 510 U.S. at 555, 114 S.Ct. 1147. The Supreme Court also made clear that,
Id. (emphasis in original). The Supreme Court went on to point to an example of a high degree of favoritism: a 1921 case against two German-American defendants in which the presiding judge stated that "`[o]ne must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans' because their `hearts are reeking with disloyalty.'" Id. (quoting Berger v. United States, 255 U.S. 22, 28, 41 S.Ct. 230, 65 L.Ed. 481 (1921)).
The Supreme Court, in Liteky, provided guidance about the meaning and importance of "extrajudicial sources."
Liteky, 510 U.S. at 554-55, 114 S.Ct. 1147. The Sixth Circuit summarized this point well: "[A]n extrajudicial source for a judge's opinion about a case or a party is neither necessary nor sufficient to require recusal. Instead, the presence of an extrajudicial source is merely a thumb on the scale in favor of finding either an appearance of partiality under § 455(a)...." Bell v. Johnson, 404 F.3d 997, 1004 (6th Cir. 2005). I also note that the Supreme Court has described the concept of an extrajudicial source as being rooted in "the pejorative connotation of the words `bias or prejudice'":
Liteky, 510 U.S. at 550, 114 S.Ct. 1147 (emphasis in original).
The Supreme Court also noted that it would be rare to find bias on the basis of a judge's attempts at courtroom administration, even if those efforts are harsh. "[E]xpressions of impatience, dissatisfaction, annoyance, and even anger ... are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display." Id. at 555-56, 114 S.Ct. 1147. Such "ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune." Id. at 556, 114 S.Ct. 1147.
The Seventh Circuit has also offered additional guidance in interpreting Liteky. The Seventh Circuit has clarified that the relevant question for purposes of 28 U.S.C. § 455(a) disqualification is whether "the judge's impartiality might reasonably be questioned by a `well-informed, thoughtful observer rather than to a hypersensitive or unduly suspicious person.'" O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 988 (7th Cir.2001) (quoting Hook v. McDade, 89 F.3d 350, 354 (7th Cir.1996); citing In re Mason, 916 F.2d 384, 386 (7th Cir.1990)); accord Microsoft Corp. v. United States, 530 U.S. 1301, 1302, 121 S.Ct. 25, 147 L.Ed.2d 1048 (2000) (Rehnquist, C.J., in chambers) (§ 455(a) "inquiry is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances"). "That an unreasonable person, focusing on only one aspect of the story, might perceive a risk of bias is irrelevant.... [A] reasonable person is able to appreciate the significance of the facts in light of relevant legal standards and judicial practice and can discern whether any appearance of impropriety
With those general standards in mind, I now turn to analyzing the City's specific arguments in favor of disqualification.
The parties dispute whether the Flynn statements constitute reliance on an extrajudicial source. Because the City is questioning my appearance of impartiality, which I take very seriously, I want to give the City every benefit of the doubt. I, therefore, assume that the Flynn statements rely upon an extrajudicial source. See Liteky, 510 U.S. at 554-55, 114 S.Ct. 1147.
But that, alone, does not require disqualification under § 455(a). It is merely a factor to consider in my analysis, rather than an independently sufficient cause for recusal. See, e.g., Liteky, 510 U.S. at 554-55, 114 S.Ct. 1147; Bell, 404 F.3d at 1004. What I must actually look for is whether there is an appearance of "a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that [I] ought not to possess ... or because it is excessive in degree." Liteky, 510 U.S. at 550, 114 S.Ct. 1147 (emphasis in original).
I do not believe any of that is the case here. In making the Flynn statements, I mentioned a news article. I attempt to stay informed by reading the news from various sources, which clearly is not inappropriate. See, e.g., Dean v. Colvin, 585 Fed.Appx. 904, 904-05 (7th Cir.2014) (in context of ALJ's social security ruling, noting that "Judges do not violate the Constitution by consulting their own funds of knowledge about the world, or by augmenting that knowledge. This court does so regularly. No judge is required to approach a case in complete ignorance. An open mind is required; an empty mind is not.") (citing Liteky, 510 U.S. 540, 114 S.Ct. 1147); In re Larson, 43 F.3d 410, 411-12 (8th Cir.1994) (disqualification not required where district judge preemptively warned parties that he would reject a plea agreement after reading in a newspaper that parties planned to enter a plea agreement).
The Flynn statements also do not evidence any sort of wrongful, excessive, or preordained view of the facts, law, or parties
Finally, it is extremely important to note the context of the Flynn statements. They formed a brief parenthetical in my Hardy post-trial order; and that order could appropriately be described as a significant victory for the City. With it, I reduced the jury verdict in favor of Mr. Hardy by $446,000.00. (Case No. 13-CV-769, Docket # 251 at 55). That is close to a 90% reduction. Additionally, and perhaps more importantly, the statements followed my extremely detailed analysis of the legality of the stop of Mr. Hardy. (Id. at 26-45). My discussion on that topic ran from the middle of page 26 to the top of page 45 of the order, analyzing and citing cases from the Seventh Circuit, Wisconsin, and multiple other circuits. (Id.) Any reasonable person with full knowledge of the facts and the relevant legal standards, see, e.g., Sherwin-Williams, 607 F.3d at 477-78 (citations omitted), would believe me to be impartial. The Flynn statement is but an extremely small part (and, if read in context, one upon which I placed no judicial reliance) in the scheme of a much larger, extremely detailed order that was of huge benefit to the City. Seeing as I made the Flynn statements in the context of an order that was of great benefit to the City, clearly evidencing my ability to make a fair judgment, I find that a reasonable, well-informed observer could not question my impartiality.
For all of these reasons, I reject the City's argument that the Flynn statements require my disqualification.
It is extremely difficult to make an effective argument that the Vagnini statements
However, even if the Vagnini statements did rely on some extrajudicial source, they would not require my disqualification. My statement was entirely factual and I provided it only to orient the reader as to Officer Vagnini's role in the evidentiary dispute. In any future case involving Officer Vagnini, there will undoubtedly be evidentiary disputes regarding the admissibility of his conviction, requiring me to review and pass upon the importance of the information again.
Finally, I again note the important context of the Vagnini statements: an exhaustive, 56-page order that granted the City a monumental reduction of the jury award in Hardy. Given that the Vagnini statements were a factual parenthetical to a decision that was otherwise extremely favorable to the City, I do not believe that there is any chance that an informed observer could reasonably question my impartiality. Again, I struggle to see how I could be viewed as unable to "make [a] fair judgment," Liteky, 510 U.S. at 555, 114 S.Ct. 1147, as a result of statements I made while rendering a fair judgment in favor of the City.
For all of these reasons, I reject the City's argument that disqualification is required by the Vagnini statements.
The City argues that the Bohannon statements, specifically my use of the word "unconscionable," might create the appearance that I am not impartial, because there were "no findings to support such an assertion," and would cause a reasonable person to question my impartiality in resolving the legal issues before me. (Opening Br. ¶ 11). In its reply, the City argues that my statements must have been "based on a conclusion that Michael Vagnini had not only been guilty in the matters for which he was serving a prison sentence,
To begin, it appears that the City is misreading my statements. The City seems to believe that I was accusing its defense of the strip search cases as unconscionable, and emphasizes the following statement I made: "there are those in [the] City that want to defend this sort of conduct. It's plainly unconscionable. That's the end of the discussion." If an observer were to have stepped into court and remained only for the duration of that statement, that observer might believe that I was saying that the defense of any strip search suit would be unconscionable. But such a blindered observer is not the object of this inquiry. Instead, as I have already noted, I must ask whether a fully-informed observer might perceive me to lack impartiality. See, e.g., O'Regan, 246 F.3d at 988 (quoting Hook, 89 F.3d at 354).
An informed observer would not make such a mistake. The full context reveals only that I was urging the City to "get serious" about its approach to these and related cases as well as the issues underlying the cases. I noted that MPD, its leadership, and its officers were the subject of many lawsuits; that the City appeared to face an uphill battle in defending the actions; and that the fact that some "in [the] City ... want to defend this sort of conduct" results in diminished morale in the MPD and lack of citizen respect for the rule of law. (Case No. 13-CV-1224, Docket # 142 at 13:24-14:19). My reference to the individuals "in [the] City" did not refer to the lawyers in the case, but instead to City leadership who has elected to oppose the strip-search lawsuits without any indication of efforts to combat the systemic problems that gave rise to the suits in the first place. This is clearly supported by my statements that followed, in which I noted that there has been public outcry as to why there are not more cameras on individual officers or in police cars. Perhaps I disapproved of the City's approach to dealing with these cases and their fallout, but an observer would not reasonably perceive that I lack impartiality in the cases. No matter how critical I may be of the approach, I continuously made clear that each case deserved to be considered on the merits and that I would resolve them as such. Most importantly, I made very clear that "[i]f the facts are on your side, you're going to prevail." (Case No. 13-CV-1224, Docket # 142 at 14:24-25). I do not know how I could have made it any clearer that I would view the facts of each case fairly.
Additionally, the Bohannon statements that the City relies upon came at the end of a statement I was making to both parties, urging them to work together. (Id. at 12:17-14:19). With my statements, I noted that the parties had not been cooperating with one another, and were instead filing an exceptional number of motions. (Id. at 12:17-13:23). I held the Bohannon hearing shortly after I concluded trial in Hardy, which was a very difficult trial to administer because the parties' attorneys struggled to cooperate. With my Bohannon statements, I hoped to achieve greater cooperation. And the language I used was appropriately stern. But, generally, that does not provide a basis for disqualification. As the Supreme Court has made clear, "expressions of impatience, dissatisfaction, annoyance, and even anger ... are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display." Liteky, 510 U.S. at 555-56, 114 S.Ct. 1147. Such "ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration remain immune." Id. at 556, 114 S.Ct. 1147.
In light of the foregoing, I do not believe that any observer with adequate view of the facts could reasonably view me as lacking impartiality. I, therefore, reject the City's argument that disqualification is required by the Bohannon statements.
Last, the City challenges the Caine statements as inappropriate because I threatened sanctions in the event that the City's attorneys "replicate[d] some of the non-starter arguments that were raised in Hardy and Venable and Bohannon." (Case No. 14-CV-1224, Docket # 16 at 5:9-12). The City asserts that these statements would lead a reasonable observer to conclude that I have "pre-ruled on summary judgment" and will, therefore, reject any of the City's arguments out of hand. (Opening Br. ¶ 6).
The City's conclusion is a misreading in light of the full context of the strip search cases. I have now handled three strip search cases that have reached the summary judgment stage — Hardy, Venable, and Bohannon. In each, the City asserted various grounds for summary judgment that I was obliged to reject because of factual disputes. (See, e.g., Case No. 13-CV-769, Docket # 93 at 14-15, 23-24; Case No. 13-CV-1114, Docket # 89 at 6-8; Case No. 13-CV-1224, Docket # 79 at 6-7). To be sure, these did not involve close calls. Also, in Hardy, the City asserted that the plaintiff could not sustain his false arrest claim as a result of his guilty plea. (Case No. 13-CV-769, Docket # 93 at 18-22). I considered this, but denied it without prejudice because the City had neither analyzed the issue with any depth nor supported the argument with the necessary facts. (Id.) I, nonetheless, offered the City the opportunity to renew the issue if they wished to do so. (Id.) The City did not do so.
I raise my prior summary judgment rulings to provide context. Before the Caine scheduling conference, I reviewed the motion for summary judgment filed by the City in Hoskin, which I had recently received by way of reassignment from Magistrate Callahan. In doing so, I noted that the motion rested upon many of the grounds I had previously rejected in Hardy, Venable, and Bohannon. Thus, I concluded that I should urge the City to seriously reconsider its Hoskin arguments to ensure that they were not frivolous like many of the arguments made in Hardy, Venable, and Bohannon. I said as much in the Caine scheduling conference, but also informed the City that I would be issuing a scheduling order requiring that the City review its Hoskin submission. (Case No. 14-CV-1224, Docket # 16 at 5:13-24). The City did not wait for that order before filing the present motions to disqualify. Had the City waited, it would have received a scheduling order advising it to review its Hoskin submission in light of the following findings:
I have taken that language verbatim from the scheduling order that I planned to issue before receiving the City's motions. Had the City waited, I could have issued that order to clarify my statements.
In light of this full context, there is nothing inappropriate about the Caine statements. I am certainly permitted to draw inferences from my prior experience, both with this line of cases and with the City's attorneys. See, e.g., Frey, 751 F.3d at 472 (disqualification not required where judge presided over prior proceedings and rendered adverse decisions). In light of the full context, it is abundantly clear that the Caine statements were both necessary and well placed to achieve effective case management, entirely permissible under Liteky, 510 U.S. at 555-56, 114 S.Ct. 1147. Every summary judgment brief that comes before me puts the taxpayers on the hook at multiple levels: first, they must pay for the City to research and write the brief; second, they must pay for me to research and render a decision; and, third, if the non-movant prevails, they may also have to pay the attorneys' fees associated with their submissions to the Court. This is an expensive (not to mention time-consuming) proposition. With a bit of common sense and open communication with opposing counsel, the City could avoid rehashing arguments that are likely losers but nonetheless result in a significant outlay of taxpayer dollars. There is an old aphorism: "Those who cannot remember the past are condemned to repeat it." With my comments, I fully expected that the City would consider my prior orders
In the end, with adequate understanding of my experience with this line of cases, any observer would fully appreciate and understand that the Caine statements were apropos to my role in effectively managing my docket. Liteky, 510 U.S. at 555-56, 114 S.Ct. 1147. I, therefore, reject the City's argument that disqualification is required by the Caine statements.
I have rejected the notion that any of these statements could be read, individually, as indicating my partiality. Even if an observer were to read them collectively, that observer could not reasonably believe that I am partial in light of the full record.
I sincerely believe that I have given the reader of this order a thoughtful perspective. Throughout the pendency of these cases, I have routinely resolved issues in favor of the City, even going so far as to: (1) dismiss or threaten to dismiss the exact types of claims upon which the City now argues I appear biased (Case No. 13-CV-1224, Docket # 142 at 6:13-25, 8:9-22) (in Bohannon, dismissing illegal stop claim and threatening to dismiss Monell claim); and (2) to reduce a jury award against the City by $446,000.00, or 90%. Thus, it is difficult for me to believe that my remarks "reveal such a high degree of favoritism or antagonism as to make fair judgment impossible," Liteky, 510 U.S. at 555, 114 S.Ct. 1147, when I made the remarks at issue most often in the context of rendering fair judgments in favor of the City. I have acted fairly and impartially throughout the course of these cases and none of my statements, together or separately, indicate in any way that I will not continue to do so. In this full context, I do not believe that any observer could reasonably view me as partial.
With the benefit of the foregoing analysis, I must now deny each of the City's motions requesting that I disqualify myself in these cases. As earlier noted, many years ago, in another case in which I was asked to disqualify myself, Bassler, I remarked that an affidavit supporting the motion that I be disqualified was "[no]thing more than the product of a badly bruised ego resulting in a poorly disguised collateral attack on the wisdom of this court's prior rulings." (Bassler v. Eisenberg, No. 87-CV-1345, Docket # 63 at 6); Ken Wysocky, Judge is in Middle of `Spat' Between Lawyer, Ex-Workers, MILWAUKEE SENTINEL, May 16, 1988, at A5, available at https://news.google.com/newspapers?nid= 1368&dat=19880516&id=XHx QAAAAIBAJ&sjid=8RIEAAAAIBAJ& pg=2487,3491743&hl=en (last visited April 7, 2015). I believe that the same statement is equally apropos of the City's motion, here, particularly as to the subject of bruised egos. The City has selectively quoted from the record — much of which I generated in reaching conclusions favorable to the City — to argue that I appear biased. I take my obligation to be fair and impartial very seriously and, throughout the course of this series of cases, have acted entirely consistent with that obligation. If some in the City — whether in the City Attorney's Office, the MPD, or the City's broader leadership — disagree, I am left to view their opinion — whether collectively or individually — as the "product
Accordingly,