United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING MOTION TO
C. NIELSON, JR. UNITED STATES DISTRICT JUDGE
Stoney Westmoreland has been indicted for an alleged
violation of 18 U.S.C. § 2422(b), which forbids
attempting to “knowingly persuade, induce,
entice, or coerce any individual who has not attained the
age of 18 years, to engage in prostitution or any sexual
activity.” He now moves to recuse me. He states that he
is a bisexual man, and that the trial will require discussion
of “the homosexual male lifestyle, particularly
‘the hookup culture,' which is distinctly
non-traditional.” Dkt. No. 50 at 3-4. He anticipates
calling gay men as witnesses who will testify about his
“transition from a heterosexual marriage, to being an
out, homosexual man.” Id. at 4. For the
following reasons, the motion is denied.
28 U.S.C. § 455(a) and (b)(1) a judge must disqualify
himself if “his impartiality might reasonably be
questioned” or if “he has a personal bias or
prejudice concerning a party.” See also Bryce v.
Episcopal Church in the Diocese of Colorado, 289 F.3d
648, 659-60 (10th Cir. 2002). But if “no reasonable
person, knowing all the relevant facts, would harbor doubts
about the judge's impartiality, ” the motion to
recuse must be denied. Id. (citation and internal
quotation marks omitted). Indeed, a judge has “as
strong a duty to sit when there is no legitimate reason to
recuse as he does to recuse when the law and facts
require.” Id. at 659 (citation and internal
quotation marks omitted).
moves to recuse me based on my role, many years before my
appointment to the federal judiciary, as a member of the
litigation team representing the official proponents of
California's Proposition 8-a state constitutional
amendment stating that “[o]nly marriage between a man
and a woman is valid or recognized in
California”-and, in particular, positions that he
asserts that I advanced during my cross-examination of two
expert witnesses at a trial regarding the validity of
Proposition 8 under the federal constitution.
motion rests on two significant assumptions. First, Defendant
assumes that the views of my former clients and the positions
that I took on their behalf reflect my own personal views.
Second, Defendant assumes that the positions that I took as a
private attorney on behalf of my clients will determine or
otherwise improperly influence my conduct and rulings as a
judge. Neither assumption is reasonable.
reasonable person, knowing all relevant facts, would
understand that as a private attorney I was obliged to
“act with commitment and dedication to the interests of
the client and with zeal in advocacy upon the client's
behalf.” Model R. Prof. Conduct 1.3 cmt. 1; see
also Utah R. Prof. Conduct 1.3 cmt. 1; D.C. R. Prof.
Conduct 1.3(a). A reasonable person would also understand
that “[a] lawyer's representation of a client
… does not constitute an endorsement of the
client's political, economic, social or moral views or
activities.” Model R. Prof. Conduct 1.2(b);
accord Utah R. Prof. Conduct 1.2(b); D.C. R. Prof.
Conduct Rule 1.2(b).
adversarial legal system depends on the shared understanding
and acceptance of these principles. As Chief Justice Roberts
explained during his confirmation hearing, the settled
understanding “that you don't identify the lawyer
with the particular views of the client, or the views that
the lawyer advances on behalf of a client, is critical to the
fair administration of justice.” Confirmation
Hearing on the Nomination of John G. Roberts, Jr. to be Chief
Justice of the United States Before the Senate Comm. on the
Judiciary, 109th Cong. 254 (2005). The comments to the
Model Rules of Professional Conduct further explain that
“[l]egal representation should not be denied to people
… whose cause is controversial or the subject of
popular disapproval. By the same token, representing a client
does not constitute approval of the client's views or
activities.” Model R. Prof. Conduct 1.2 cmt. 5.
Criminal defendants, including Defendant here, and their
counsel, including the many devoted federal defenders in this
and other districts, surely can appreciate the increased
access to legal representation and other benefits to our
justice system that these long-established principles
promote. And based on “the longstanding principle that
a client's views are not imputed to the lawyer, ”
other judges have properly denied motions to recuse that are
based on positions they took as private lawyers on behalf of
their clients prior to their appointment to the bench.
E.g., United States v. Black, 490 F.Supp.2d
630, 664 (E.D. N.C. 2007).
reasonable person, knowing all relevant facts, would also
understand the different roles of judges and private
attorneys in our legal system. Such a person would
accordingly recognize that my conduct and rulings as a judge
will not be determined or improperly influenced by the
positions that I took as a private attorney on behalf of my
clients. As Justice Kagan explained at her confirmation
hearings, as an attorney she “approach[ed] . . . cases
as an advocate from the perspective of” her client and
did not “look at both sides in the way you do as a
judge.” Confirmation Hearing on the Nomination of
Elena Kagan to be Associate Justice of the United States
Before the Senate Comm. on the Judiciary, 111th Cong.
92-93 (2010). When Justice Kagan represented a client, her
perspective thus was that “I have a client and I'm
the best advocate I possibly can be for that client.”
Id. at 170. By contrast, “the role of a judge
is-is different from the role of an advocate, and it's
important to recognize that.” Id. Similarly,
Judge Motley of the Southern District of New York denied a
motion to recuse herself that was based on her representation
as a private attorney of plaintiffs “in civil rights
litigation” and the fact that she “happen[ed] to
be of the same sex as a plaintiff in a suit alleging sex
discrimination, ” correctly concluding that the
argument that these factors indicated that she was “so
biased that . . . she could not hear the case” came
“nowhere near the standards required for
recusal.” Blank v. Sullivan & Cromwell,
418 F.Supp. 1, 4 (S.D.N.Y. 1975). My private practice no
doubt differed from Judge Motley's, but any suggestion
that positions taken as a private attorney on behalf of
clients prior to appointment to the bench-whether the clients
or their positions are popular or unpopular-somehow indicate
that a judge cannot fairly preside over an unrelated case
implicating arguably similar issues is surely unreasonable.
even if I in fact held the personal views that Defendant
imputes to me based on positions that he believes I advanced
on behalf of my clients-and I do not-a reasonable person
would not assume that as a judge I would follow those views
rather than the law that I have sworn to uphold.
“[C]ourts have rejected the notion that such
generalized policy views necessitate recusal as a matter of
course.” United States v. Payne, 944 F.2d
1458, 1476 (9th Cir. 1991). “As long as the judge is
capable of refining his views in the process of this
intellectual confrontation, and maintaining a completely open
mind to decide the facts and apply the applicable law to the
facts, personal views on law and policy do not disqualify him
from hearing [a] case.” S. Pac. Commc'ns Co. v.
Am. Tel. & Tel. Co., 740 F.2d 980, 991 (D.C. Cir.
1984); see also United States v. Wilkerson, 208 F.3d
794, 797 (9th Cir. 2000); Com. of Pa. v. Local Union 542,
Int'l Union of Operating Eng'rs, 388 F.Supp.
155, 168 (E.D. Pa. 1974).
statements made by members of Congress who opposed my
nomination provide grounds for my recusal. In recent years
many nominations, including my own, have drawn significant
political opposition. A reasonable person, knowing all
relevant facts, would not conclude that statements made by
politicians who opposed my nomination accurately reflect my
personal views, let alone that such statements indicate how I
might rule as a judge in any particular case. The statements
relied on here, moreover, reflect the same unreasonable
assumptions discussed above-that the views of my former
clients and the positions ...