Ronald Glick v. Dave Edwards

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RON D. GLICK, No. 13-35230

Plaintiff-Appellant,

D.C. No.

v. 9:11-cv-00168-DWM

DAVE EDWARDS,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Senior District Judge, Presiding

Submitted February 6, 2015*

Seattle, Washington

Filed October 7, 2015

Before: Carlos T. Bea and Mary H. Murguia, Circuit

Judges, and William Horsley Orrick,** District Judge.

Opinion by Judge Bea

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable William Horsley Orrick III, District Judge for the U.S.

District Court for the Northern District of California, sitting by

designation.

2 GLICK V. EDWARDS

SUMMARY***

Recusal

Affirming the district court’s judgment, entered following

a jury trial, the panel rejected plaintiff’s contention that

District Judge Molloy and Magistrate Judge Lynch abused

their discretion when they declined to recuse themselves from

presiding over plaintiff’s claims, despite being named as

defendants.

Following his conviction in 2005, plaintiff alleged a vast

governmental conspiracy to persecute him and violate his

constitutional rights. In the present action, plaintiff alleged

eight causes of action against 19 defendants, including the

United States District Court for the District of Montana,

which included every judge in the District of Montana. The

panel held that the rule of necessity permits a district judge to

hear a case in which he is named as a defendant where a

litigant sues all the judges of the district. Accordingly,

Judges Molloy and Lynch did not abuse their discretion when

they declined to recuse themselves, though named as

defendants in the action.

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GLICK V. EDWARDS 3

COUNSEL

Ron D. Glick, pro se, Kalispell, Montana, for Plaintiff-

Appellant.

Rebekah J. French, Special Assistant Attorney General, and

Thomas G. Bowe, Assistant Attorney General, Helena,

Montana, for Defendant-Appellee.

OPINION

BEA, Circuit Judge:

An old fable tells tale of a Pope, who, convinced of his

own grave sin, called on his cardinals to judge him. “No,

Your Holiness!” they replied. “We cannot sit in judgment

over you. You must be your own judge.” And so, faced with

the necessity his soul be judged, the Pope judged himself. He

confessed his sin and abdicated the Holy See. He is now

commemorated as a saint.

This ancient parable was recounted in a somewhat less

ancient proceeding before the English Court of Common

Pleas in 1430.1 There, the court considered whether the

Chancellor of Oxford could preside over an action sounding

in trespass against himself as defendant. Normally, such a

1

Y.B. Hil. 8 Hen. VI, pl. 6, f. 19 (1430) (“En ascun temps fuit un

Pape . . . .” (“Once upon a time there was a Pope . . . .”)). The fable is

likely based on the pontificate of Pope St. Marcellinus, elected Pope in

296 A.D., though the story is apocryphal. See Johann Joseph Ignaz von

Döllinger, Fables Respecting the Popes in the Middle Ages 81–87 (Alfred

Plummer trans., Dodd & Mead 1872) (1863).

4 GLICK V. EDWARDS

conflict of interest would disqualify the chancellor. But

because there was no provision for the appointment of

another judge, the court held that the chancellor, like the now-

sainted Pope, would have to hear his own case. Two centuries

later, Rolle’s Abridgment summarized the rule of that case as

follows: “If an action is sued in the bench against all the

Judges there, then by necessity they shall be their own

Judges.” 2 Henry Rolle, Un Abridgment des Plusieurs Cases

et Resolutions del Common Ley 93 (1668) (“Si un Action soit

sue en b. vers touts les Judges la, la pur necessity ils seront

lour Judges demesne.”).

We note, of course, that judges are not saints. Nor do we

expect them to be. The law has instead developed rules of

recusal to protect the legal process from the interests and

biases of less-than-saintly judges. But as in the Oxford case

from Lancastrian times, we recognize there may be

circumstances where recusal will not suffice. Sometimes—by

necessity—a judge must judge himself.

I

In 2005, plaintiff-appellant Ron D. Glick was convicted

in Montana state court for sexually assaulting the 13-year-old

daughter of his girlfriend. See State v. Glick, 203 P.3d 796,

798 (Mont. 2009). Glick attributed his prosecution and

conviction to political persecution. He has since spent

considerable effort and resources in attempts to vindicate

himself. Following his release on probation in 2009, he

initiated a number of civil suits, filed pro se and in forma

pauperis in state and federal court, against various federal and

state officers and institutions, and some private persons.

Those suits have all alleged essentially the same facts: There

exists a vast governmental conspiracy to persecute Glick and

GLICK V. EDWARDS 5

violate his constitutional rights. This case is the latest

iteration in Glick’s campaign to clear his name and recover

damages from those people and institutions he alleges have

conspired against him.

Glick’s complaint here states eight causes of action and

names 19 defendants, including his probation officer,

defendant-appellee Dave Edwards, as well as three federal

judges, four state judges, the Montana Supreme Court,

Montana’s 11th Judicial District, and, importantly, the United

States District Court for the District of Montana. Glick’s

claims can be divided into roughly two categories. First,

Glick seeks damages under 42 U.S.C. § 1983. He alleges

Parole Officer Edwards unlawfully seized Glick’s computer

and filed false reports of probation violations in retaliation for

Glick’s pursuit of habeas corpus relief. Second, Glick alleges

a civil RICO conspiracy to persecute him and to violate his

constitutional rights. See 18 U.S.C. § 1964. The alleged

conspiracy comprises federal and state judicial officers,

police, prosecutors, attorneys, and Glick’s former girlfriend.

Glick’s conspiracy claims are largely duplicative of

claims he made in an earlier suit, in which he named many of

the same parties as defendants. The district court dismissed

that case. See Glick v. Eleventh Jud. Dist. Ct. of Mont., No.

CV 09-128-M-DWM-JCL, 2010 WL 4392508, at *1 (D.

Mont. Oct. 26, 2010). And we dismissed Glick’s appeals

from that case for want of jurisdiction. When Glick filed the

present action, the case was assigned to the same judges who

had presided over his earlier case—District Judge Donald W.

Molloy and Magistrate Judge Jeremiah C. Lynch—despite the

fact Glick’s new complaint named Judges Molloy and Lynch

as defendants. Magistrate Judge Lynch granted Glick’s

motion to proceed in forma pauperis and conducted a

6 GLICK V. EDWARDS

preliminary screening of Glick’s complaint as required by

28 U.S.C. § 1915(e)(2). First, Magistrate Judge Lynch

concluded neither he nor District Judge Molloy was

disqualified from hearing the case, despite being named as

defendants. He then recommended all of Glick’s claims be

dismissed on grounds of res judicata, failure to state a claim,

and various immunities—except for Glick’s § 1983 claims

against Officer Edwards.

Glick filed written objections to Magistrate Judge

Lynch’s findings and recommendations, in which he argued

District Judge Molloy and Magistrate Judge Lynch had been

disqualified because he had named them as defendants. But

he did not stop there. He explained that by suing the district

court itself he had intended to sue every judge in the District

of Montana. By his reasoning, not only were Judges Molloy

and Lynch disqualified; every judge in the district was

disqualified. Glick concluded, without citation to authority,

that he was thus entitled to review of his case by a panel of

judges designated by the Chief Justice of the United States.

District Judge Molloy rejected Glick’s objections and

adopted Magistrate Judge Lynch’s findings and

recommendations in full. Officer Edwards filed his answer

and moved for judgment on the pleadings under Fed. R. Civ.

P. 12(c) on the basis of qualified immunity. The district court

granted the motion as to the unlawful-seizure claim only, and

the case proceeded to trial on Glick’s retaliation claim. The

jury returned a verdict in favor of Officer Edwards, and Glick

timely appealed pro se.

The heart of Glick’s appeal is his contention that District

Judge Molloy and Magistrate Judge Lynch abused their

discretion when they declined to recuse themselves from

GLICK V. EDWARDS 7

presiding over Glick’s claims, despite being named as

defendants. His other claims are either inextricable from his

recusal claim or meritless, and we do not address them

further.

II

Although Glick did not formally move the district court

for recusal, he clearly stated the grounds for District Judge

Molloy’s and Magistrate Judge Lynch’s disqualification in

his objections to Magistrate Judge Lynch’s findings and

recommendations. We construe Glick’s objections as a

motion for recusal and thus review the district court’s refusal

to recuse itself for abuse of discretion. See United States v.

McTiernan, 695 F.3d 882, 891 (9th Cir. 2012). A district

court abuses its discretion when it applies the wrong legal

standard or when its findings of fact or its application of law

to fact are “illogical, implausible, or without support in

inferences that may be drawn from the record.” United States

v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

We may affirm the judgment of the district court on any

ground supported by the record. Lambert v. Blodgett,

393 F.3d 943, 965 (9th Cir. 2004).

III

Title 28, § 455(b)(5)(i) of the United States Code provides

a federal judge “shall . . . disqualify himself” when “a party

to the proceeding.” Glick named both District Judge Molloy

and Magistrate Judge Lynch as defendants in this action

because of their rulings against him in prior lawsuits. In his

findings and recommendations, Magistrate Judge Lynch

suggested the language of § 455(b)(5)(i) is “not absolute” and

“a judge may exercise discretion and refuse to recuse himself

8 GLICK V. EDWARDS

in proceedings where a litigant is abusing the judicial

system.” Judge Lynch found Glick’s claims against him and

Judge Molloy barred by judicial immunity and thus frivolous,

permitting him to exercise discretion and not recuse himself.

District Judge Molloy adopted Judge Lynch’s findings and

recommendations and also found recusal unnecessary because

Judge Molloy “never demonstrated any antagonism toward

Glick or deep-seated favoritism to other parties.”

In declining to recuse themselves, Judges Molloy and

Lynch relied on our case law interpreting 28 U.S.C. §§ 144

and 455(a). Those provisions require recusal where “a

reasonable person with knowledge of all the facts would

conclude that the judge’s impartiality might reasonably be

questioned.” United States v. Studley, 783 F.2d 934, 939 (9th

Cir. 1986). We note that we have not applied this standard to

the recusal rule in § 455(b), which sets forth specific

circumstances in which a judge shall recuse himself and does

not, on its face, permit a judge to exercise discretion. Cf.

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,

859 n.8 (1988) (noting that § 455(b)(4) “requires

disqualification” of a judge who has a financial interest in a

case “no matter how insubstantial the financial interest and

regardless of whether or not the interest actually creates an

appearance of impropriety”). But cf. Andersen v. Roszkowski,

681 F. Supp. 1284, 1289 (N.D. Ill. 1988) (“[C]ourts have

refused to disqualify themselves under Section 455(b)(5)(i)

unless there is a legitimate basis for suing the judge.”), aff’d

without opinion, 894 F.2d 1338 (7th Cir. 1990). We need not

now decide whether § 455(b)(5)(i) excepts, for example, a

situation in which a plaintiff’s claims against the presiding

judge are facially improper or frivolous, because we may

affirm the judgment of the district court due to the unusual

circumstances of this case. See Lambert, 393 F.3d at 965.

GLICK V. EDWARDS 9

This case differs from a typical motion for recusal

because Glick did not sue only Judges Molloy and Lynch; he

indiscriminately sued every judge in the District of Montana.

Strict application of § 455(b)(5)(i) would have thus rendered

every judge in the district disqualified. In Ignacio v. Judges

of the U.S. Court of Appeals for the Ninth Circuit, 453 F.3d

1160 (9th Cir. 2006), this court found itself in a situation

similar to that faced by Judges Molloy and Lynch. There,

plaintiff-appellant Tevis Ignacio filed suit in the District of

Nevada against the “Judges of the United States Court of

Appeals for the Ninth Circuit, in their capacity as judges,”

among other federal, state, and private defendants, alleging a

sweeping conspiracy to meddle in his domestic relations;

hence, when he appealed the dismissal of his case by the

district court, every judge of this circuit was “a party to the

proceeding” and thus disqualified. Id. at 1162–63. Faced with

the impossibility of convening a disinterested three-judge

panel, we held that where a litigant sues all the judges of the

circuit, none of the judges are required to recuse. Id. at

1163–65. We based that holding on the rule of

necessity—that ancient exception to the rules of recusal first

recorded in the Oxford case—which “allows a judge,

normally disqualified, to hear a case when ‘the case cannot be

heard otherwise.’” Id. at 1164 (quoting United States v. Will,

449 U.S. 200, 213 (1980)).

Although Ignacio applied the rule of necessity to circuit

judges, its reasoning and rationale apply with full force to

district judges. The rule of necessity provides for the effective

administration of justice while preventing litigants from using

the rules of recusal to destroy what may be the only tribunal

with power to hear a dispute. See id. at 1165 (quoting

Brinkley v. Hassig, 83 F.2d 351, 357 (10th Cir. 1936)). We

acknowledge that the rule of necessity should be invoked

10 GLICK V. EDWARDS

rarely in our system of justice, in which the appearance of

justice is an aspect of justice itself. But our system cannot

function if it cannot resolve cases. And we are confident that

the checks and balances enshrined in our constitutional

framework, such as the right to an appeal and the availability

of concurrent state and federal tribunals, will effectively

mitigate the risk that the trial of an actual conspiracy

comprising an entire federal court will be improperly

squelched by the judges involved.

We further note that the rule of necessity is not a rule of

actual impossibility. It may well have been possible to find an

unconflicted Article III judge somewhere in the country who

could hear Glick’s case, perhaps by transferring the case to a

different district or assigning a judge from another district to

sit by designation.2 But even Glick’s requested remedy, a

panel of disinterested judges designated by the Chief Justice

of the United States, creates as many problems as it solves.

For example, if the Chief Justice could appoint judges to act

in the District of Montana, the appointment would

presumably make them fall within the class of defendants he

sued: judges in the District of Montana. And even Glick’s

consent to such an arrangement could not remedy the utter

lack of statutory authority for such a panel. But we need not

flesh out these scenarios any more than Glick has. Nor will

we require courts to acquiesce to the extraordinary demands

of vexatious litigants.

2

Even more unconventional options are conceivable. For example, when

all five members of the Texas Supreme Court were disqualified from a

case involving Woodmen of the World because each justice was a member

of that fraternal organization, the governor appointed a Special Supreme

Court of three women to hear the case. See Johnson v. Darr, 272 S.W.

1098, 1098 n.* (Special Sup. Ct. Tex. 1925).

GLICK V. EDWARDS 11

We therefore hold that the rule of necessity applies where

every judge of a tribunal would otherwise be disqualified.

More pithily stated: “where all are disqualified, none are

disqualified.” Ignacio, 453 F.3d at 1165 (internal quotation

marks omitted) (quoting Pilla v. Am. Bar Ass’n, 542 F.2d 56,

59 (8th Cir. 1976)). The rule of necessity thus permits a

district judge to hear a case in which he is named as a

defendant where a litigant sues all the judges of the district.

Glick did just that. Accordingly, Judges Molloy and Lynch

did not abuse their discretion when they declined to recuse

themselves, though named as defendants in this action.

IV

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED.