UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
CORNELIUS PRIOR, JR., Plaintiff,
v.
INNOVATIVE COMMUNICATIONS CORP.,
f/n/a ATLANTIC TELE-NETWORK CO., Defendant/Third Party Plaintiff,
v.
CRAIG KNOCK, Third Party
Defendant.
ATLANTIC TELE-NETWORK, INC., Plaintiff,
v.
JEFFREY J. PROSSER, Defendant.
Civ. No. 1999-232, Civ. No. 1999-236
2000 U.S. Dist. LEXIS
12584
August 16, 2000, Decided
On Defendants' Motion to Recuse Judge Moore
the Motion was Granted
For Cornelius Prior, Jr., Atlantic Tele-Network,
Inc., plaintiffs: J. Daryl Dodson, Esq., St. Thomas, U.S.V.I.
For Innovative Communications Corp., Jeffrey J.
Prosser, defendants: Joel H. Holt, Esq., St. Croix, U.S.V.I.
Defendants Innovative
Communications Corp. ["ICC"] and Jeffrey J. Prosser ["Mr.
Prosser"] have asked me to recuse myself from the above-captioned cases
due to my personal relationship with plaintiff Cornelius Prior, Jr. ["Mr.
Prior"], and their allegations of judicial bias against Mr. Prosser.
The defendants' motion
relies on two statutes--title 4, section 284 of the Virgin Islands Code,
and title 28, section 455 of the United States Code. Before discussing
the defendants' allegations, I will review these statutes in brief.
V. I. CODE ANN. tit.
4, § 284 provides that "no judge
shall sit or act . . . in any action . . . when it is made to appear probable
that, by reason of bias or prejudice of such judge, a fair and impartial trial
cannot be had before him." 4 V.I.C. §
284(4). Similarly, [*2] 28 U.S.C. §
455 mandates that a judge "shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned," or
"where he has a personal bias or prejudice concerning a party." 28
U.S.C. § 455(a-b); In re Recusal
Motion, 118 F. Supp. 2d 622 (D.V.I. 2000).
The statutes differ
somewhat in their application. Under 4 V.I.C. § 284, the movant "must allege facts reflecting a clear
probability that the judge is biased," but the truth of the movant's
allegations is presumed. De Olivera v. Armstrong, Civ. No. 1977-111,
slip. op. (D.V.I. 1977) (emphasis added); see also Government of the Virgin
Islands v. Gereau, 11 V.I. 265, 295-96, 502 F.2d 914, 931 (3d Cir. 1974).
Conversely, under 28 U.S.C. § 455, the
movant need only show that the court's "impartiality might reasonably
be questioned," but the movant's allegations may be examined for their
truth. See In re Recusal Motion, 118 F. Supp. 2d 622, 624 n.3
(emphasis added).
Mr. Prosser's
affidavit opens with the statement that "Cornelius Prior is a personal
friend of the Honorable Thomas [*3]
Moore." (Defs.' Mem., Mar. 22, 2000, Ex. 1.) Mr. Prior and I have
played tennis with and against each other on a fairly regular basis for several
years. The defendants have not asked me to recuse myself from previous actions
involving Mr. Prior, or Mr. Prosser, but their present counsel suggests that
the fact that I know him personally would lead reasonable persons to sincerely
question my impartiality as judge. Out of an abundance of caution, I will grant
the defendants' motion for this reason. n1[1]
I depart from my usual
practice of not explaining my grounds for recusal, however, because Mr.
Prosser's affidavit and the defendants' two-pronged motion contain other
allegations that are legally insufficient for judicial disqualification.
[*4] If the defendants' motion relied
solely on the allegations reproduced below, I would deny their motion under 4 V.I.C.
§ 284 and 28 U.S.C. § 455.
Mr. Prosser's
affidavit alleges, in pertinent part:
6. While the appeal
[of a writ of execution issued by the Territorial Court for a $ 2,500,000
payment required by Mr. Prosser's divorce decree] was pending in 1996, a
reporter from the [Virgin Islands] Daily News called an employee
of mine, Ed Crouch, on January 11, 1996[,] and asked for information about the
case. When Mr. Crouch suggested that the matter was not newsworthy, the
reporter informed Mr. Crouch that he had received information from Mr.
Prior's attorney about the divorce as well as from the law clerks of Judge
Moore, whom he indicated had given him an off-the-record interview regarding
the specific details of the case.
7. The subsequent
article appeared one week later and was negative toward me. I suggested to
counsel that a recusal motion should be considered, but counsel chose not to
pursue it.
8. One month later,
the same law clerks filed claims with the PSC in their own names against
Vitelco. I again suggested to [*5]
counsel that a recusal motion should be considered, as these were the
law clerks working on the appeal. However, counsel again chose not to
pursue the issue.
9. After this
Court's denial of my appeal, the divorce case was settled by full payment
of all sums owed plus interest, costs and attorney's fees.
10. To my surprise, 30
months later, this Court entered sanctions against me personally, even
though no hearings were ever held regarding my conduct and/or involvement in
the case. When the Third Circuit reversed these sanctions, the sentiments
expressed in footnote 4 admonishing courts against "vindictiveness or
retribution" expressed my feelings about how I was treated in this
matter.
11. The same feeling
again arose when one of the former law clerks previously mentioned filed a
class action suit in the District Court in 1998 against my companies arising
out of circumstances that took place when he worked for the District Court
when my appeal was being considered.
12. I have discussed
my concerns about Judge Moore's ability to be impartial toward me with various
persons, including practicing attorneys in this jurisdiction, and they have
all echoed [*6] my concerns, including the fact that Judge Moore has made
extrajudicial statements which suggest that he harbors hostile feelings toward
me.
13. Based upon the
foregoing information, I believe that Judge Moore cannot be impartial toward
me or my wholly-owned companies . . . .
(Defs.' Mem., Mar. 22, 2000, Ex. 1 (Aff. of
Jeffrey J. Prosser) (emphasis added).)
Assuming that these
allegations are true under 4 V.I.C. §
284, they do not reflect a clear probability that I am biased or
prejudiced against Mr. Prosser or his wholly-owned companies.
First, the allegation
that "the law clerks of Judge Moore had given [an unidentified reporter]
an off-the-record interview regarding the specific details" of Mr.
Prosser's appeal is both vague and irrelevant to the issue of my impartiality.
Without describing the "specific details" of the alleged
"off-the-record" conversation, Mr. Prosser's affidavit suggests that
my law clerks communicated confidential information such as my personal views
to the news media. n2[2]
The affidavit does not attribute this alleged conversation to me, with good
reason: My law clerks are responsible for their own actions, and are expressly
forbidden to [*7] disclose confidential
information, such as my personal views on pending matters, to the news media. Cf.
CODE OF CONDUCT FOR JUDICIAL EMPLOYEES Canon 3D ("A judicial employee
should never disclose any confidential information received in the course of
official duties . . . .").
Likewise, the
allegation that a Daily News article "appeared one week later and
was negative" toward Mr. Prosser, (Defs.' Mem., Mar. 22, 2000, Ex. 1), is
not evidence of judicial bias. There is no allegation that I spoke to a Daily
News reporter off-the-record or authorized another person to do so, and I
have no control over the content or tone of the Daily News, or any other
news publication. "In any event, news media outlets are not an effective
barometer for determining whether recusal is warranted, as other courts
[*8] have acknowledged." In re Recusal
Motion, 118 F. Supp. 2d 622, 641 (citations omitted).
Mr. Prosser's
allegations that one or more of my law clerks "filed claims with the PSC
in their own names against Vitelco" or "filed a class action suit in
the District Court in 1998 against [his] companies," (Defs.' Mem., Mar.
22, 2000, Ex. 1), are also irrelevant to my impartiality. Again, my law clerks
are responsible for their own actions, and there is no allegation in the
affidavit that I instigated these actions. The defendants may believe that my
law clerks were biased against Mr. Prosser and dictated my views, but no facts
in the affidavit--or beyond--justify this false impression. Indeed, when the
District Court case involving my former law clerk came to my attention, I
recused myself sua sponte, that is, on my own initiative. (See
Order, Civ. No. 1998-022, Oct. 29, 1998.)
Mr. Prosser next
alleges that the Appellate Division of the District Court erred in denying his
appeal and imposing sanctions upon him without a hearing. (Defs.' Mem., Mar.
22, 2000, Ex. 1.) For purposes of 4 V.I.C. §
284, I also accept this allegation as true, but conclude that it falls
far short of establishing [*9] a clear
probability that I am personally biased or prejudiced against the defendants.
The two per curiam
Appellate Division decisions in question, Prosser v. Prosser, 34 V.I.
139, 921 F. Supp. 1428 (D.V.I. App. Div. 1996), and Prosser v. Prosser,
40 V.I. 241, 40 F. Supp. 2d 663 (D.V.I. App. Div. 1998), are poor evidence of
my supposed antagonism toward Mr. Prosser. These decisions reflected the
collaborative effort and shared views of Chief District Judge Raymond L. Finch
and Territorial Court Judge Ive A. Swan in addition to myself.
As Mr. Prosser notes,
the Court of Appeals reversed our sanctions order on timeliness grounds, and
noted in a footnote that "[a] court cannot be motivated by vindictiveness
or retribution when issuing sanctions." (See Defs.' Mem., Mar. 22,
2000, Ex. 1); Prosser v. Prosser, 186 F.3d 403, 406 n.4 (3d Cir. 1999).
The Court of Appeals explicitly refused to express an opinion on the merits of
the sanctions order, however, and never described our decision as the product
of personal bias. See id.
Disqualification
requires proof of personal bias, not adverse attitudes based on the
study of [*10] facts, depositions, or
briefs. See Joseph v. Zinke-Smith, Inc., 6 V.I. 219, 223 (Mun. Ct.
1967); see also United States v. Grinnell Corp., 384 U.S. 563, 583, 16
L. Ed. 2d 778, 86 S. Ct. 1698 (1966). Adverse or erroneous judicial decisions
are not grounds for recusal. See In re Recusal Motion, 118 F.
Supp. 2d 622, 630 (citing Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350,
1357 (3d Cir. 1990)), 33 (citing Johnson v. Trueblood, 629 F.2d 287, 291
(3d Cir. 1980)); Stephen v. Antigua Brewery, Ltd., 42 V.I. 461, 88 F.
Supp. 2d 422, 425 (D.V.I. 2000). The Prosser record hardly mandates my
disqualification.
Lastly, Mr. Prosser
alleges that "various persons . . . have all echoed [his] concerns,
including the fact that Judge Moore has made extrajudicial statements which
suggest that he harbors hostile feelings toward [him]." (Defs.' Mem., Mar.
22, 2000, Ex. 1.) This conclusory allegation is not competent evidence of
judicial bias. See In re Recusal Motion, 118 F. Supp. 2d 622 at
645; Kampfer v. Gokey, 955 F. Supp. 167, 169 (N.D.N.Y. 1997) (observing
that "conclusory claims of bias without adequate supporting factual
[*11] allegations" do not compel
recusal); Hirschkop v. Virginia State Bar Ass'n, 406 F. Supp. 721, 725
(E.D. Va. 1975) (rejecting generalized affidavit). If such vague claims were
legally sufficient for recusal, litigants could disqualify judges at will. See
In re Recusal Motion, 118 F. Supp. 2d 622; United States v. Corr,
434 F. Supp. 408, 413 (S.D.N.Y. 1977). Likewise, Mr. Prosser's subjective
belief that I "cannot be impartial toward [him] or [his] wholly-owned
companies" provides no basis for recusal.
As I have explained,
Mr. Prosser's allegations are legally insufficient for judicial
disqualification under 4 V.I.C. § 284.
The same conclusion is appropriate under 28 U.S.C. § 455, for his affidavit contains no allegations that would lead
reasonable, informed observers to question my impartiality.
The affidavit relies
heavily on conjecture and multiple hearsay. It attempts to establish that my
law clerks revealed confidential information to the Daily News by
recounting a phone call between an unidentified reporter and one of Mr.
Prosser's employees, Mr. Ed Crouch, in which the reporter tried to gain
information from [*12] Mr. Crouch and
establish that Mr. Prosser's appeal was newsworthy by asserting that he had
spoken to my law clerks. (Defs.' Mem., Mar. 22, 2000, Ex. 1.) The obviously
self-serving remarks of an unidentified reporter, related by a person who did
not even overhear those remarks, is unworthy of credence. The hearsay
allegation that I made "extrajudicial statements which suggest that [I]
harbor[] hostile feelings" toward Mr. Prosser, (id.), is equally
implausible.
I categorically reject
the allegations of judicial bias in Mr. Prosser's affidavit as grounds for my
disqualification. As it has been suggested that my acquaintance with Mr. Prior
would lead reasonable persons to question my impartiality, however, it is
hereby
ORDERED
that the defendants' motion for recusal is GRANTED.
ENTERED
this 16th day of August, 2000.
FOR THE COURT:
/s/
Thomas K. Moore
District Judge
[1]
n1
To eliminate any delay in the handling of this case, I apprised Magistrate
Judge Geoffrey W. Barnard of my impending recusal, and Judge Barnard assigned
this case to Senior District Judge Stanley S. Brotman of the District of New
Jersey, sitting by designation, on June 8, 2000.
[2]
n2
(See id.) The record and briefs in Mr. Prosser's appeal were available
to the public, so the information allegedly disclosed to the Daily News
presumably would have related to my thoughts on the case.