MEMORANDUM AND ORDER ON RECUSAL
HAROLD LAVIEN, Bankruptcy Judge.
Before the Court are the recusal motions of Anthony R. Martin-Trigona, a creditor and shareholder of the debtor WHET, Inc.,
A brief review of this case will put the subject motion in context. Voluntary Chapter 11 petitions for each of two radio station corporations, New Haven Radio, Inc., and WHET, Inc., owned by Mr. Martin-Trigona, and Mr. Martin-Trigona's personal Chapter 11 petition were filed in the Southern District of New York. The WHET, Inc. petition was filed on August 15, 1980. The New Haven Radio, Inc. case and the individual Chapter 11 case were transferred to the District of Connecticut. This debtor's case was transferred to the District of Massachusetts on September 3, 1980. The case was assigned to me through the "blind draw" system. At that time, Mr. Martin-Trigona was in a federal penal institution in Missouri, and the radio station of which he was chief executive officer was experiencing serious financial problems. As a result of a hearing in Boston on September 17, 1980, a trustee was ordered and the United States Trustee appointed David J. Ferrari. The trustee determined that without the infusion of substantial capital, which did not seem then available, reorganization was not possible. The station would have substantially less value without its FCC license and without transmitter towers and both were in jeopardy. Sale of the station was the only appropriate route.
The first of five recusal motions was filed by Mr. Martin-Trigona on July 23, 1981.
After careful review of his handwritten recusal motion,
Title 28, § 455 of the United States Code contains the most recent rule promulgated by Congress with regard to disqualification of federal judges, including bankruptcy judges. It reads, in part:
The language of § 455(a) is easier to state than to apply. Possibly, the most troubling part of the language concerns the determination of in whose eyes must the impartiality be open to question, and what is meant by "reasonably." The First Circuit Court of Appeals has provided us some guidance:
See also In re United States, 666 F.2d 690, 694 (1st Cir.1981).
Some courts have resolved the issue of disqualification by determining that appearances are most important, regardless of the facts. See In re Olson, 20 B.R. 206 (D.Neb.1982), where the district court reversed the bankruptcy court and required recusal because the judge was aware that the debtor had made accusations of improper conduct against him to various government officials. However, the Fifth Circuit case on which Olson relied was grounded on more compelling and persuasive facts. See id. at 21 (citing Potashnick v. Port City Const. Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980) (father of trial judge was partner in law firm representing a party in the case, and attorney for the plaintiff also represented judge in unrelated matter; "questionable case" calling for disqualification)). Olson is not the view of the First Circuit and may, in fact, be an aberration. Even Chief Justice MacKinnon, a proponent of the "appearance of justice" rule who felt strongly enough about that view to dissent, alone, in the case of Mitchell v. Sirica, 502 F.2d 375, 379 (D.C.Cir.1974), limited his application of the rule. He "strongly urged (without success) the application of the `appearance of justice' rule with respect to extrajudicial source bias [and] refused to go so far as to `bias developed during the very trial.'" Lazofsky v. Sommerset Bus Co., Inc., 389 F.Supp. 1041, 1045 (D.E.D.N.Y. 1975). What Justice MacKinnon said in Sirica was:
In its report on the 1974 Amendment the House Judiciary Committee stated:
The question, therefore, to be addressed when considering recusal under § 455 is whether "disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality." Potashnick, supra, at 1111; see also United States v. Ferguson, 550 F.Supp. 1256, 1260 (S.D.N.Y.
While 28 U.S.C. § 144 is not directly pertinent since it expressly does not apply to bankruptcy judges,
United States v. Zagari, 419 F.Supp. 494, 501 (N.D.Cal.1976) (citations omitted).
It is now necessary to examine the record as it relates to the present motions to recuse. I focus first on Mr. Martin-Trigona's motion. It is movant's contention that I have extrajudicial involvement in this case; specifically that I, the trustee, counsel to the trustee, and others, are allies in a theft of the assets of the debtor. I will not address each individual allegation made by the movant in support of his conspiracy theory because, for the most part they are simply conclusory accusations and I have already described my handling of this case in great detail. See In re WHET, Inc., 12 B.R. 743 (Bkrtcy.D.Mass.1981). The allegations emphasized by the movant, however, will be reviewed so that they may be disposed of after a full airing. This review is probably more detailed than necessary but is warranted because of the serious nature of the contentions.
Movant points to several adverse (to him) rulings made by the Court, including the denial of motions for forma pauperis status, denial of writs of habeas corpus ad testificandum, the order approving the sale of the radio station, and an order requiring pleadings to conform to Bankruptcy Rule 911. Each of these matters is the subject of appeals initiated by the movant, and at least the first three matters have been previously addressed in the Court's detailed opinion. Id. In any event, rulings perceived as adverse by a litigant do not provide the basis for a recusal motion. "[W]e caution against a district judge disqualifying himself on the basis of an allegation of a perceived history of rulings that a moving party dislikes." Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1021 (5th Cir.1981). Also, the case law is clear that recusal is not a substitute for a substantive appeal. "`[The recusal statute] was never intended to enable a litigant to oust a judge for adverse rulings made, for such rulings are reviewable otherwise. . . .'" In re International Business Machines Corp. 618 F.2d 923, 929 (2nd Cir.1980) (quoting Ex parte American Steel Barrel Co., 230 U.S. 35, 44, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379 (1913)). Further, the bias which would require recusal must be extrajudicial. The judge must necessarily form opinions based on what he observes during the course of a case.
It must be emphasized that the key event in the WHET, Inc. case was the June 30, 1981 order approving the sale of the radio station. That order was appealed by Mr. Martin-Trigona on July 30, 1981. The Bankruptcy Appellate Panel dismissed the appeal on May 14, 1982 for lack of diligent prosecution. See Appeal No. 81-
The sale has been consummated. The consideration has been paid in full. The FCC license has been transferred and the new owners are operating the station. For discussions of the extensive advertising, heated bidding, and the analysis of the prevailing bid and appraisals, see the transcripts of June 19 and June 30, 1981 hearings and the Court's analysis in its Memorandum on Sale. To the extent that any appeals are still pending, the First Circuit Court of Appeals may affect the sale in some way but the trial court's part is substantially over,
Related to the Mr. Martin-Trigona's general theory that the Court and the trustee are aligned in a theft of the debtor's assets is his allegation that the Court permitted the trustee to enter into a secret agreement with the debtor's landlord, Charles River Broadcasting. I am satisfied from review of the record (including review of the notice of sale, the content of Attorney Suskin's objection to the sale filed June 15, 1981, the July 1, 1981 Memorandum on Sale and Related
Another allegation relating to the movant's conspiracy theory is that the trustee's failure to file financial reports at the intervals required by the Office of the United States Trustee, and the trustee's failure to make available to the movant certain financial records requested by him, permit an adverse inference to be drawn that I, or my relatives, or others with whom I am allegedly associated, have an interest in the funds or the situs of the funds. On this matter, it can simply be pointed out that I have addressed the manner of the trustee's reporting in the Memorandum on Sale, In re WHET, Inc., supra, at 748. Further, monitoring compliance with the requirements of the United States Trustee's Office is exclusively the responsibility of that office. When a party in interest properly brings before the Court a problem relating to the availability of the debtor's records or the trustee's accounting, appropriate orders are entered. The original order authorizing the sale made reference to the trustee's performance and the requirements refiling reports. On December 27, 1982, I ordered, sua sponte, the trustee to amend and supplement the Disclosure Statement to include "a full and complete analysis of funds received by the trustee during his entire administration and all disbursements. . . . There also should be some analysis of the trustee's stewardship including a profit and loss summary." (This order should not be read to imply there were no reports in the files, but rather that the information in the Disclosure Statement was inadequate.) On January 24, 1983, in response to the movant's motion to compel discovery, I promptly entered an order to compel discovery. The trustee's alleged failure to comply will be taken up at the hearing on the movant's Motion for Order to Show Cause why trustee's counsel should not be held in contempt. A hearing on this matter would already have been held but for Mr. Martin-Trigona's several requests for continuances that have prevented ruling on this recusal motion. (The Court agreed to refrain from ruling on any adversarial matters until disposal of the recusal motion.)
Movant avers that his interests were not represented at the hearings on the sale on June 19 and June 30, 1981 because of a conflict of interest of Attorney Gerald T. Weiner who was present at those hearings allegedly at the request of Mr. Martin-Trigona.
The final assertion made by the movant in connection with the alleged conspiracy is that the Court engaged in ex parte contacts with functionaries in this case. Movant has stated by way of affidavit that Attorney Weiner, who was present at the June 19 and June 30, 1981 hearings on the proposed sale of the radio station, told him that he
In connection with the ex parte contacts allegation, movant has previously pointed to my reference to "oral reports" of the trustee. He seems to assume that if a report is oral, it must be ex parte. In fact, the reports referred to were made during the course of duly noticed hearings at which a court stenographer was present. Obviously, hearings are transcribed only if a party orders a transcript. My own cursory review of transcripts in the files located three such reports plainly on record. See Transcripts of Hearings on January 22, 1981, June 19, 1981 and June 30, 1981.
One more accusation related to the allegation of my purported alliance with the trustee is the matter of my requesting the trustee, or counsel to the trustee, to notice certain matters for hearings. I do not see how this can be viewed as a sign of favoritism. The Court frequently requests the proponent in a matter to notice interested parties, and to file a certificate of notice, because the proponent often knows better than the clerk's office who the interested parties are, or the proponent should bear the expense of extensive noticing, or can do the noticing more quickly (if time is a factor), or even because the clerk's office has a limited staff. The rules explicitly provide for the procedure.
I am not ignoring movant's major allegation, that I and/or my immediate family, other relatives, former law firm, or other professional associates are either directly enjoying proceeds of the sale of the radio station, or indirectly doing so by having a disqualifying financial interest in the situs of the funds, or that I have knowingly assisted the trustee, counsel to the trustee, or some other functionary in somehow personally benefitting from these funds. I have already described the approach I have taken towards the trustee's accounting and the availability of the debtor's records. Beyond that what the movant has provided amounts to no more than conclusory accusations. Allegations of conspiracy must be supported by material facts, not merely conclusory statements. Slotnick v. Garfinkle, 632 F.2d 163, 165-66 (1st Cir.1980). The courts require more than "mere surmise and conjecture." United States v. Cepeda Penes, 577 F.2d 754, 758 (1st Cir. 1978). "A trial judge must hear cases unless some reasonable factual basis to doubt the impartiality or fairness of the tribunal is shown by some kind of probative evidence." Blizard v. Frechette, 601 F.2d 1217, 1221 (1st Cir.1979) (citation omitted).
These ground rules are that a judge must ignore rumors, innuendos and erroneous information when considering whether or not to disqualify himself and instead consider whether a charge of partiality is supported on a factual basis. Id. at 695. The First Circuit observed that "disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality." Id. Movant in his memoranda substitutes "adverse inferences" for facts, and such baseless accusations and unsupportable allegations do not rise to the level of probative evidence.
The second major theory for recusal which the movant argued is that because he has filed lawsuits against me, and others, and has requested certain federal agencies to investigate me, a reasonable person would not view me as impartial. My review of the papers filed in this case, or otherwise brought to my attention by formal process, shows the following. Mr. Martin-Trigona first purportedly brought suit against me in the Western District of Missouri in June of 1981. Movant has now filed a complaint pro se in the Southern District of New York against myself, the other three bankruptcy judges in this district, the United States Trustee, the trustee, the attorney for the trustee, as well as twelve members of the attorney's law firm, alleging violations of the federal anti-racketeering statute.
The third, and most recent, lawsuit
Movant concludes in his affidavit that I and trustee's counsel "are subjects of an active and ongoing investigation." I must disagree. All movant has shown, if copies of letters are accepted as evidence that they were in fact sent, is his proclivity to engage in harassing tactics. Simply incorporating assertions of a conclusory nature in formal complaints, in letters to federal agencies or appellate judges, or in a speech or letter to a Grand Jury does not make them more than assertions of a conclusory nature. The Seventh Circuit, where Mr. Martin-Trigona has been an active litigant, has defined the problem:
Issues of bias and self-interest, to be disqualifying, cannot be unilaterally created by the moving party. "A judge is not disqualified merely because a litigant sues or threatens to sue him." United States v. Grismore, 564 F.2d 929, 933 (10th Cir.1977).
Movant's harassment tactics range from the childish
In a real sense, Mr. Martin-Trigona is engaged in bribery by intimidation. "So if you're innocent, what do you need this kind of trouble for?" Transcript of Hearing, January 5, 1983, at 64. Movant fairly aptly characterized his approach when he termed it a "crusade."
It may be that Mr. Martin-Trigona, recognizing his legal and factual problem, is attempting by his wild accusations of venal conduct on the part of all the lawyers, trustees, and bankruptcy judges involved in the administration of the estates in both Massachusetts and Connecticut, in the words of former Justice Jackson, to pound loudly on the table in the hope that if he becomes enough of a problem, that by either intimidation or weariness, he may accomplish some part of his purpose. Since he is already in bankruptcy, what does he have to lose? The result is that the accusations increase, the motions, pleadings, complaints and suits multiply, courts and lawyers are buried in mountains of time-consuming paper. If there is one truth, it is that the estate will be bled white by the costs and legal fees engendered by his "crusade."
There are affirmative reasons why the motion to recuse should not be granted. The first is the continuing harm to creditors who have already waited two and one-half years. The second is judicial economy. To quote Chief Judge Caffrey: "This matter comes within that class of cases where `for a new judge to achieve familiarity would require wasteful delay or duplicated effort.'" Blizard v. Fielding, 454 F.Supp. 318, 323 (D.Mass.1978), aff'd, 601 F.2d 1217 (1st Cir.1979) (citations omitted). The docket in this case runs 28 single pages.
At this stage, subject to any action taken by the appellate court, the items that await determination, while of importance, are peripheral in light of the fact that the sale of the radio station has been accomplished. They consist of objections to twelve claims including four claims filed by Mr. Martin-Trigona. The latter belong to his personal trustee in the Connecticut case, and they have been reportedly settled, subject to authorization from the District of Connecticut Bankruptcy Court, a matter that may be delayed because of the present effort to consolidate before one judge all of the various Martin-Trigona proceedings in Connecticut. The remaining matters are the approval of a Disclosure Statement, which is in essence a review of the trustee's accounting of his stewardship, and a distribution of the funds. In addition, various motions filed by Mr. Martin-Trigona, contemporaneously with or subsequent to the subject recusal motion, must be addressed. These include a motion to transfer the case, a motion for order to show cause why the trustee's counsel should not be held in contempt, and a motion to dismiss the case for lack of subject matter jurisdiction. These matters have been set for hearing and the Notice of Hearings has been issued on this date.
Finally, courts must be careful that the recusal process is not used as a method of judge-shopping. See In re Parr, supra, at 1018. Litigants are entitled to impartial judges, "but they are not entitled to judges of their own choice." § 455, Legislative History, supra. Congress has not yet "prescribed that parties should be given one or more peremptory charges with respect to judges." Lazofsky, supra, at 1044. Any judicial system worthy of respect and confidence must provide impartial judges who, though not infallible, will do their individual best to determine the facts from the material presented and apply the appropriate law without outside influence, bias or
Of course, it is not pleasant to read or hear in almost every communication from Mr. Martin-Trigona a steady stream of invective, and the repeated accusation that I am in some way enjoying personal financial benefit from the WHET, Inc. case. Movant frequently claims he needs a new judge because no lawyer is willing to appear before me, on movant's behalf, because of the widespread view that I am part of the "Bankruptcy Ring." How does one defend against such a canard other than to rely on a reputation created over the years and to look to the source of the criticism and let the record speak for itself.
Although, neither I nor the Court need the protection of contempt to preserve our integrity,
Movant must show by probative evidence that grounds exist which would permit a reasonable person, knowledgeable of the circumstances, to doubt my impartiality or fairness. Blizard v. Frechette, supra, at 1220. This he has failed to do and I abjure that there has been any improper conduct on my part in connection with this case.
The second motion to recuse before me was filed on January 14, 1983 by Attorney Edward Kenneth Suskin on behalf of three creditors, namely, Donna L. Wolske, SLJ Communications, Inc., and Affiliated International Investors, Inc. Mr. Suskin waived hearing and requested a ruling on the written record. Mr. Suskin argued two grounds for recusal. First, that "the court has tolerated repeated ex parte application on the basis of unverified submissions and claims, and improperly imposed upon parties the burden of proceeding in a manner inconsistent with established principles of bankruptcy practice." I will assume Mr. Suskin is referring to the Objection to Claims filed by the trustee on October 29, 1982, which included his clients' claims and the Order to Show Cause re Objection to Claims which was entered on November 1, 1982, in lieu of an ordinary "Notice of Hearing on Objections to Claims". The Bankruptcy Code and Rules are silent as to the form for objections to claims except for the following language under Bankruptcy Rule 306:
The Advisory Committee's Note, in relevant part, states the following:
In the present case, the Order to Show Cause re Objections to Claims was in writing, was legible, and properly captioned the court case and docket number, gave the basis of the objection, the relief sought, and appropriate notice of hearing date. A trustee's filing of objections to claims is a routine matter. The noticing of a hearing is a clerical, nonadversarial matter. In this case, the so-called Order to Show Cause was handled as a clerical function with a signature stamp.
It has long been established that a properly filed proof of claim is prima facie evidence of its validity if there is an objection to the claim. Whitney v. Dresser, 200 U.S. 532, 26 S.Ct. 316, 50 L.Ed. 584 (1906). This concept has been formally incorporated into Bankruptcy Rule 301(b) and Interim Rule 3001(b)(4) and appears in the Legislative History to 11 U.S.C. 502(a). The objecting party (the trustee in this case) has the "burden of going forward," i.e., he or she must produce evidence "of a probative force equal to that of the allegations in the creditor's proof of claim." 3 Collier on Bankruptcy ¶ 502.01 (15th ed. 1982). The burden of proof as opposed to the burden of going forward is always on the claimant. Once the trustee overcomes the prima facie effect given the claim, the burden is on the claimant to prove the validity of the claim by a preponderance of the evidence. While it would have been better practice not to have labeled the notice of the objections as an Order to Show Cause, the Order to Show Cause form in itself does not shift the burden of proof. Riverview Packing Co. v. Reconstruction Finance Corp., 92 F.Supp. 376, 380 (D.N.J.1950); Chambers v. Blickle Ford Sales, Inc., 313 F.2d 252, 256-57 (2nd Cir.1963) (applying Connecticut law). Any error in the Order to Show Cause, I believe, comes within the harmless error rule. Federal Rule of Civil Procedure 61, made applicable to bankruptcy proceedings by Bankruptcy Rule 905, requires "[t]he court at every stage of the proceeding [to] disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." None of the subject claims has been disallowed for the reason that the
Mr. Suskin's second argument for recusal is that "[t]he conduct of the Court in these proceedings vis a vis the creditors represented by the undersigned has been such that it appears retaliatory actions are being taken by the court because counsel is vigorously pressing appeals from rulings of the court." The Affiliated International Investors, Inc. claim was denied on September 22, 1981 because the claimant, after due notice, failed to comply with an August 24, 1981 order for a more definite statement,
I conclude that neither Mr. Suskin nor Mr. Martin-Trigona has provided any reasonable basis for finding that my impartiality might reasonably be questioned or that I have a personal bias or prejudice concerning a party in interest. The motions for recusal are denied.
"Ferrari, Lavine, Goodwin Proctor & Hoar [counsel to the trustee] and other bankruptcy scum acted, combined and conspired to kidnap Martin-Trigona through the auspices of one Warren White in January, 1981, for the purpose of stealing the debtor and converting these assets for the benefit of the bankruptcy scum ring."
Guard my tongue from evil and my lips from speaking guile,
And to those who slander me, let me give no heed.'*
* From the Amidah—An Ancient Jewish Prayer"
"Debtor and Anthony R. Martin-Trigona, jointly and severally, move Harold Lavine to recuse himself because of his participation in fraud and the theft of the assets of the debtor. "The appearance of justice is destroyed when a judge who is subject to federal investigation forces himself in a case to seek to cover-up his fraud."
9 Moore's Federal Practice ¶ 203.11, at 3-34 to 3-47 (2nd ed. 1982) (footnotes omitted).
MR. MARTIN-TRIGONA: Mr. Lavine [La vn'] if I may be heard in response to your statement?
THE COURT: You know, the name is Lavien [L'v en] and you have spelled it incorrectly on several of the pleadings and I really would appreciate it if you would pronounce it correctly.
MR. MARTIN-TRIGONA: Well, I am pronouncing it correctly. I don't use Yankee pretensions. And I have many friends who have the same name and they spell it the same way and they pronounce it the same way and I don't see why I'm going to pronounce it your way just because you may have some Yankee pretensions because you—Transcript of Hearing January 5, 1983, at 7.