Opinion

Justice v. State of Ohio

Court
District Court, S.D. Ohio
Filed
Oct 18, 2021
Cited by
0 cases
Authority
More cited than 28.3%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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