The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
LOTUS JUSTICE,
Petitioner, : Case No. 2:21-cv-3584
- vs - District Judge Sarah D. Morrison
Magistrate Judge Michael R. Merz
STATE OF OHIO, et al.,
:
Respondents.
DECISION AND ORDER DENYING MOTION FOR CHANGE OF
VENUE AND RESPONDING TO ASSERTION OF
DISQUALIFICATION
This habeas corpus case, brought pro se by Petitioner Lotus Justice, is before the Court on
Petitioner’s Response of Magistrate’s Decision and Order Denying En Banc Reconsideration or
Writ of Certiorari; Notice of Bias and Prejudice; Reply to En Banc Denial, Notice of Bias and
Prejudice (“Response,” ECF No. 44) and her Reply Contra Magistrate’s Decision and Entry
Responding to Request for Clarification [and] Demand for Change of Venue (“Reply,” ECF No.
45).
In large part the Response consists of asserting errors of law by the Magistrate Judge, either
due to incompetence or willful obstruction of Petitioner’s case. The remedy for legal error by a
Magistrate Judge in ruling on a non-dispositive pretrial matter is by objection to the assigned
District Judge. Fed.R.Civ.P. 72(a).
On the other hand, an assertion that a federal judge is disqualified from hearing a case
because of bias and prejudice is addressed in the first instance to the accused judge.
Legal Standard for Disqualification of a Judge
The standard applied in evaluating recusal motions is an objective one. "[W]hat matters is
not the reality of bias or prejudice, but its appearance." Liteky v. United States, 510 U.S. 540, 548
(1994). A federal judicial officer must recuse himself or herself where "a reasonable person with
knowledge of all the facts would conclude that the judge's impartiality might reasonably be
questioned. This standard is not based 'on the subjective view of a party,'" no matter how strongly
that subjective view is held. United States v. Nelson, 922 F.2d 311, 319 (6th Cir. 1990), cert. denied
499 U.S. 981 (1991); Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990); Wheeler v.
Southland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989); Browning v. Foltz, 837 F.2d 276, 279 (6th
Cir. 1988). Review is for abuse of discretion. Wheeler, 875 F.2d at 1251. Where the question is
close, the judge must recuse himself. Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir. 1980).
§ 455(a) requires disqualification in any proceeding in which a judge’s impartiality might
reasonably be questioned. “This statute embodies the principle that ‘to perform its high function
in the best way justice must satisfy the appearance of justice.’” Ligon v. City of New York (In re
Reassignment of Cases), 736 F.3d 119, 123 (2nd Cir. 2013), vacated on other grounds 743 F.3d
362 (2nd Cir. 2014), quoting In re Murchison, 349 U.S. 133, 136 (1955).
A disqualifying prejudice or bias must ordinarily be personal or extrajudicial. United
States v. Sammons, 918 F.2d 592, 598 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246,
1250 (6th Cir. 1989). That is, it "must stem from an extrajudicial source and result in an opinion
on the merits on some basis other than what the judge learned from his participation in the case."
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also Youn v. Track, Inc., 324 F.3d
409, 423 (6th Cir. 2003), citing Grinnell, supra; Bradley v. Milliken, 620 F.2d 1143, 1157 (6th Cir.
1980), citing Grinnell, supra; Woodruff v. Tomlin, 593 F.2d 33, 44 (6th Cir. 1979) (citation
omitted). The Supreme Court has written:
The fact that an opinion held by a judge derives from a source
outside judicial proceedings is not a necessary condition for ’bias
and prejudice’ recusal, since predispositions developed during the
course of a trial will sometimes (albeit rarely) suffice. Nor is it a
sufficient condition for ‘bias and prejudice’ recusal, since some
opinions acquired outside the context of judicial proceedings (for
example, the judge’s view of the law acquired in scholarly reading)
will not suffice. ... [J]udicial rulings alone almost never constitute
valid basis for a bias or partiality motion. See United States v.
Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778
(1966). ... Second, opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a
bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 554-55 (1994); see also Alley v. Bell, 307 F.3d 380, 388 (6th
Cir. 2002)(quoting the deep-seated favoritism or antagonism standard). The Liteky Court went on
to hold:
Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display. A
judge’s ordinary efforts at courtroom administration — even a stern
and short-tempered judge’s ordinary efforts at courtroom
administration — remain immune.
510 U.S. at 555. Since the decision in Liteky, supra, “federal courts have been uniform in holding
that § 455(a) cannot be satisfied without proof of extrajudicial bias, except in the most egregious
cases.” Flamm, Judicial Disqualification 2d § 25.99, citing In re Antar, 71 F.3d 97 (3rd Cir. 1995),
overruled on other grounds Smith v. Berg, 247 F.3d 532, 534 (3rd Cir. 2001).
Application
The undersigned is not personally biased or prejudiced against the Petitioner in this case.
I have no knowledge of her except what is set forth in the filings in this case. I have applied the
law as I understand it to the case. I decline to recuse myself from further participation in this case.
Demand for Change of Venue
In her Demand for Change of Venue, Petitioner advances the theory that The United States
District Court for the Southern District of Ohio at Columbus where she filed this case is only a
territorial court. She demands that her case be transferred to the District Court for the
United States at Dayton. As has been explained to Petitioner, there is one constitutional Article
III court for the Southern District of Ohio with seats in Cincinnati, Columbus, and Dayton.
This case is already in an Article III court. Petitioner’s demand for change of venue is DENIED.
October 18, 2021.
s/ Michael R. Merz
United States Magistrate Judge