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Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.

United States District Court, N.D. Oklahoma

June 18, 2018

(1) CHRISTOPHER BARNETT, Plaintiff,
v.
(1) HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., (2) J. PATRICK CREMIN, (3) JOHNATHAN L. ROGERS, and (4) UNIVERSITY OF TULSA, a private university, Defendants.

          OPINION AND ORDER

          TERENCE C. KERN UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff's Motion to Recuse. (Doc. 19.) For reasons discussed below, Plaintiff's Motion to Recuse is DENIED.

         I. Background

         Plaintiff Christopher Barnett (“Plaintiff”) filed his Petition in District Court of Tulsa County on January 5, 2018. (Doc. 2-1.) Defendants Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., J. Patrick Cremin, and Johnathan L. Rogers removed the case on January 30, 2018 (Doc. 2), and the case was randomly reassigned to this Court on February 1, 2018. (Doc. 10.) On February 15, 2018, Plaintiff filed a Motion to Recuse pursuant to 28 U.S.C. § 455. (Doc. 19.)

         Plaintiff argues that Defendant University of Tulsa (“TU”)'s description of a donation made by the undersigned's wife creates a reasonable question as to his impartiality. Similarly, Plaintiff argues that TU brought “unnecessary attention” to certain disparaging comments regarding this Court when it attached those comments, among others made by Plaintiff, to its Motion for Protective Order. (Docs. 19, 30, and 39.) Defendants all argue that Plaintiff's factual allegations regarding donations to TU do not create the appearance of bias, and that a Plaintiff may not create the basis for a recusal request with his own conduct. (Docs. 27 and 32.)

         II. Standard for Recusal

         A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a) (2018). The test in this circuit is “whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality.” See United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). The analysis is extremely fact driven. See Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995). Section 455 is not, however, intended to give litigants a veto over sitting judges, or a vehicle for obtaining a judge of their choice. Accordingly, a judge has an equal, countervailing obligation not to recuse himself when there is no occasion for him to do so. See Cooley, 1 F.3d at 993-94.

         III. Analysis

         A. Financial Contributions

         In 2011, the undersigned's wife, Jeanette Kern, made a gift to TU, her alma mater, in the form of a single-payment life insurance policy. She purchased the life insurance policy for approximately $16, 000, and it is payable to TU in the amount of $100, 000 upon her death. See Ross v. Univ. of Tulsa, No. 14-CV-484, 2017 U.S. Dist. LEXIS 38650, *3-4 (N.D. Okla. March 17, 2017). Upon her death, this insurance gift will fund “The Jeanette Headington Kern Endowed Scholarship for Student-Athletes.” (Doc. 19-3, description of scholarship on TU website.) The undersigned's wife purchased the insurance policy with her separate funds, and the gift does not appear on the undersigned's personal tax returns. See Ross, 2017 U.S. Dist. LEXIS 38650, *3-4.

         Plaintiff notes in his motion that the Chapman Legacy Society has announced the “Jeanette Headington Kern Endowed Scholarship for Student-Athletes”. The scholarship, however, cannot come into being until her death. Plaintiff goes on to quote additional statements from the Chapman Legacy Society noting that Jeanette Kern and “her husband, Terry C. Kern, have generously supported both academics and athletes at TU…” The statement apparently further states that “TU has acknowledged the extraordinary and inspired philanthropy of Jeanette and Terry Kern…”.

         Though the undersigned had never seen these particular statements prior to this motion, they appears to contain more than a little hyperbole. A $16, 000 donation would generally not be enough to warrant such statements. Apparently, the university is thanking Mrs. Kern in advance for the $100, 000 they will receive when she dies. Plaintiff argues that TU's description of the donation suggests that both the undersigned and his wife made this gift, in spite of the fact that the undersigned has expressly stated in Ross that the gift was made solely by Jeanette Kern, and solely from her own funds. Plaintiff further suggests that TU's description of the gift creates the misleading impression that it was not in the form of a life insurance policy but rather a large, “in-time” donation, in direct contradiction of the facts as recited in Ross. Apparently counsel has some difficulty in reading and understanding the English language. A life insurance policy payable upon someone's death is not an “in-time” donation. There is no “in-time” found in the dictionary. The term “in time, ' however, has a secondary meaning of “eventually, ” which is in fact when the insurance policy will be paid.

         These facts are not sufficient to support recusal in this case. Both the parties and the public can reasonably be expected to believe facts established in the public record. See Moore v. Publicis Groupe, 868 F.Supp.2d 137, 155 (S.D. N.Y. 2012) (a party making a recusal motion is charged with knowledge of all facts known or knowable with due diligence from the public record or otherwise); United States v. Daley, 564 F.2d 645, 651 (2d. 1977) (a motion to recuse was untimely where the facts supporting the motion were both public record and actually known to movant). Moreover, if a judge had made such a gift, the gift would still not require recusal. A judge's status as an alumnus or contributor, without more, is not a reasonable basis for questioning a judge's impartiality. Rather, Plaintiff must allege facts demonstrating a specific bias, such as a specific and particular interest in the subject of the litigation or access to extrajudicial facts. See Chalenor v. Univ. of N.D., 291 F.3d 1042, 1049-50 (8th Cir. 2002) (“Both the fact that Judge Webb is an alumnus of the University and the fact that he has contributed financially to the University are immaterial, unless the facts indicated a specific and particular interest in the wrestling program or some other particularly relevant problem.”); Lunde v. Helms, 29 F.3d 367, 371 (8th Cir. 1994) (“We do not think that making alumni contributions or participating in university educational programs, without more, is a reasonable basis for questioning the judge's impartiality.”); Wu v. Thomas, 996 F.2d 271, 275 (11th Cir. 1993) (while recusal may be required if a judge was a university trustee or could learn about the case through “extensive school ties, ” his status as adjunct professor and his past financial contributions to the university were insufficient to warrant recusal).

         B. Plaintiff's ...


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