257 F. Supp. 3d 1084
N.D. Cal.2017Background
- NAF sued CMP, David Daleiden, and others in July 2015; Judge William H. Orrick was randomly assigned and has presided throughout extensive litigation, including issuance of a TRO and a preliminary injunction.
- The Ninth Circuit affirmed the preliminary injunction, describing the defendants as anti-abortion activists who misrepresented themselves to record NAF meetings and noting post-release harassment and violence.
- The injunction barred publishing recordings, future meeting dates/locations, and NAF members’ names/addresses obtained at meetings.
- After the Ninth Circuit stayed issuance of mandate but left the injunction in effect, plaintiff alerted the court to possible violations; Judge Orrick held a May 25, 2017 telephonic hearing and set a June 14 contempt hearing.
- On June 7, 2017 (seven days before the contempt hearing), Daleiden and CMP moved under 28 U.S.C. §§ 144 and 455 to disqualify Judge Orrick for bias; Judge Orrick referred the motion for random reassignment though he questioned timeliness and sufficiency.
- The court addressed the substance and denied disqualification, finding the asserted facts (wife’s Facebook activity, past board ties to a nonprofit linked indirectly to Planned Parenthood, and the judge’s hearing remarks) insufficient to make a reasonable observer question impartiality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Judge Orrick must be disqualified under 28 U.S.C. § 144 / § 455 for bias or appearance of partiality | N/A (court evaluates motion filed by defendants) | Defendants: wife’s Facebook posts (pro-choice overlays/likes) show judge’s bias by attribution; judge’s comments at hearing and past nonprofit ties create appearance of partiality | Denied — a reasonable, well-informed observer would not infer judge’s impartiality reasonably questioned based on these facts |
| Attribution of spouse’s political activity to judge | N/A | Defendants: Mrs. Orrick’s public pro-choice expressions (some posts showed couple photo) mean judge shares and expresses same views | Denied — spouse is independent speaker; no facts show posts reflect judge’s views; mere photo does not cause reasonable confusion |
| Prior nonprofit service/donations creating disqualifying tie | N/A | Defendants: Judge’s prior board role at Good Samaritan and its partnership with a Planned Parenthood affiliate creates bias or access to extrajudicial information | Denied — connection attenuated, different legal entities, service ended years earlier, allegation speculative not factual |
| Judicial remarks at May 25 hearing as basis for recusal | N/A | Defendants: Judge’s admonition ("obligated to follow the Court’s orders... not try to skate around them and cause real harm") shows prejudgment and antagonism | Denied — remarks were permissible admonition grounded in record and prior findings; not deep-seated bias making fair judgment impossible |
Key Cases Cited
- United States v. Sibla, 624 F.2d 864 (9th Cir. 1980) (standards/procedure for §144 and relation to §455)
- United States v. Holland, 519 F.3d 909 (9th Cir. 2008) (objective "reasonable person with knowledge of all facts" standard for judicial impartiality)
- Clemens v. U.S. Dist. Court for Central Dist. of Cal., 428 F.3d 1175 (9th Cir. 2005) (judge’s duty to sit absent legitimate reason and §455(a) fact-driven analysis)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial remarks during proceedings are not disqualifying absent deep-seated favoritism or antagonism)
- Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011) (spouse’s public advocacy is her own and need not be imputed to judge)
- Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864 (9th Cir. 1991) (denial of recusal upheld despite family employment ties)
- Yagman v. Republic Ins., 987 F.2d 622 (9th Cir. 1993) (recusal not warranted on speculation)
- Davies v. Commissioner of Internal Revenue, 68 F.3d 1129 (9th Cir. 1995) (motions under §455 must be timely)
- United States v. Zagari, 419 F. Supp. 494 (N.D. Cal. 1976) (judge may refer recusal question for de novo consideration though not required)