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McCubbin v. Weber County

United States District Court, D. Utah

January 7, 2020

LELAND KIM McCUBBIN, JR. and DANIEL JOSEPH LUCERO, Plaintiffs,
v.
WEBER COUNTY, OGDEN CITY, and CHRISTOPHER ALLRED, in his official capacity, Defendants.

          MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY JUDGE

          TED STEWART UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on a Motion to Disqualify Judge filed by Defendants Weber County and Christopher Allred (collectively, “Defendants”). This Motion has been referred to the undersigned by Chief Judge Robert J. Shelby. For the reasons discussed below, the Court will deny Defendants' Motion.

         I. BACKGROUND

         Plaintiffs brought this civil rights suit after having been subjected to a gang injunction. Among other things, Plaintiff requested declaratory judgment that any attempt to serve them with an identical injunction would violate their civil rights. Plaintiffs also requested removal from the gang database allegedly maintained by Weber County and Ogden City.

         In response, Defendants moved for summary judgment. Relevant here, Defendants argued that Plaintiffs' claims for prospective relief were moot because: (1) Weber County does not possess a gang database; and (2) Weber County would not seek an identical injunction.

         Support for these arguments came from the Declarations of current Weber County Attorney Christopher Allred and former Weber County Attorney Dee Smith. Both Mr. Allred and Mr. Smith stated: “Weber County has never kept a database or any sort of list of Ogden Trece gang members nor has Weber County ever had the ability to put a person on the Ogden Trece Database or remove a person from the list.”[1] In his Second Declaration, Mr. Allred stated that Weber County would not seek a gang injunction order that is exactly like the previous injunction.[2] While Weber County continued to contemplate a potential future injunction, “no definite plans, actions, or steps have been taken toward actually filing and obtaining an injunctive order of any kind against any gang.”[3] Finally, in his Third Declaration, Mr. Allred stated that, to his knowledge, there was not an “official or unofficial list, database, or handwritten notes related to gang membership that Weber County owns, possesses, or controls.”[4]Additionally, Mr. Allred stated that “[n]obody at the Weber County Attorney's Office ever used any gang information, from a database or otherwise, that was owned or controlled by Weber County, for any purpose, including in deciding who to serve with the Injunction.”[5]

         In a Memorandum Decision and Order dated September 27, 2019 (“Memorandum Decision and Order”), Judge Waddoups rejected Defendants' mootness arguments. With respect to the existence of a gang database, Judge Waddoups found, based on the testimony of a Weber county jail investigator who testified that he started gang files, that there was a dispute of fact as to whether Weber County possesses files regarding gang membership.[6]

         Judge Waddoups then went further, stating that there were additional reasons to deny Defendants' motion on this issue. Specifically, Judge Waddoups stated that he had “reason to question Mr. Allred's representations” concerning the existence of a gang database.[7] These questions arose from two sources. The first was an evidentiary hearing Judge Waddoups conducted in an unrelated criminal case. There, a Weber County corrections officer testified that he “worked on establishing the gang unit inside of the jail where we would document all of the gang members inside the jail and create a -- basically a hierarchy of the different gangs.”[8]

         After hearing this testimony, Judge Waddoups “performed a search on Google, using the search term ‘weber county jail gang unit.' The first result from that search yielded a webpage maintained by Weber County Sheriff's Office titled ‘Jail investigations.'”[9] That webpage stated, in pertinent part, that jail investigators “use jail intelligence information to document inmates as gang members.”[10] That information is then provided to various state and federal agencies, including the Weber County Attorney's Office, and has been useful to agencies investigating and prosecuting criminal activity committed by gang members.[11]

         This information made it hard for Judge Waddoups “to understand how Mr. Allred could have submitted a declaration in 2018, under penalty of perjury, representing to this court that ‘there is not any official or unofficial list, database, or handwritten notes related to gang membership that Weber County owns, possesses, or controls.'”[12] Judge Waddoups also stated that this evidence “appears to contradict Chris Allred's representation that ‘[n]obody at the Weber County Attorney's Office ever used any gang information from a database or otherwise, that was owned or controlled by Weber County, for any purpose . . . .'”[13]

         Judge Waddoups pointed to the same evidence in rejecting Defendants' arguments related to voluntary cessation. In doing so, Judge Waddoups sought to distinguish this case from Brown v. Buhman.[14] In Brown, the Tenth Circuit found that an action was moot where a county prosecutor declared under penalty of perjury that the plaintiffs would not be prosecuted for bigamy.[15] With no credible threat of prosecution, the plaintiffs' claims were moot. The court stated that it had “no basis to question [the prosecutor's] bona fides” and, in order to find that the voluntary cessation was a sham, “we would have to conclude the highest-ranking law enforcement official in Utah County had engaged in deliberate misrepresentation to the court.”[16]The court stated there “was no basis for this conclusion. Close scrutiny of the relevant facts does not suggest [the prosecutor] is attempting to deceive the court.”[17]

         In contrast, Judge Waddoups stated:

But unlike the County Attorney in Brown, this court has a reason to question Chris Allred's bona fides. As discussed at length above, Chris Allred submitted multiple declarations under penalty of perjury representing that Weber County never possessed any gang database/list. And, as discussed at length above, the court has serious reason to question that representation. “Close scrutiny of the relevant facts” may suggest that Chris Allred “is attempting to deceive the court.” At this time, the court has reason to question Chris Allred's credibility. The court cannot, at this time, take Mr. Allred at his word that he will not seek a substantially similar injunction. Nor can the court, at this time, accept Mr. Allred's representation that he would not serve the plaintiffs in this case with a future injunction. At this time, the court cannot conclude that Weber County has met its heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to recur.[18]

         Judge Waddoups went on to provide Defendants an opportunity to respond to his concerns and offered to hold an evidentiary hearing on the issue of mootness. At that hearing, Mr. Allred would be provided an opportunity to “explain the apparent contradiction between his sworn representations” and the evidence discussed above.[19]

         Defendants filed the instant Motion on October 23, 2019. Defendants complaints can be summarized as follows:

In this case, the Judge heard a witness testify on some background facts that gave the appearance that the Judge became prejudiced or biased against Defendant Weber County Attorney Chris Allred and former Weber County Attorney Dee Smith. He then took that information to perform his own “Google” research, undirected by the parties. The parties never had an opportunity to refute or respond to the information gained by the Judge. The Judge then concluded that it appeared that Chris Allred and Dee Smith submitted false declarations and denied two or more claims on summary judgment because Chris Allred's “bona fides” are now questioned by the court. However, the only reason his “bona fides” were question was because of the testimony of just one witness at a criminal motion to suppress hearing. A reasonable person could assume that Judge Waddoups has a biased view of whether Defendants will submit false testimony.[20]

         II. DISCUSSION

         Defendants argue that Judge Waddoups should be disqualified because of the appearance of prejudice or bias against Defendants. Defendants bring their Motion pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455(a).

         Section 144 provides:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith

         Under 28 U.S.C. § 144, an affidavit of bias and prejudice must be timely, sufficient, made by a party, and accompanied by a certificate of good faith of counsel.[21] Because of the possibility of abuse, strict compliance with the procedural requirements is required.[22]

         Defendants have failed to strictly comply with the requirements of § 144. Specifically, Defendants' Motion and affidavits were not accompanied by a certificate of counsel. Defendants argue that the Court should construe the “Introduction” section to its Motion as a certificate of counsel. However, strict compliance with the procedural requirements of the statute is required. The Introduction to the Motion is not sufficient to be considered a certificate of counsel.

         Defendants also argue that the Declaration of Christopher Allred satisfies the requirements of the statute. Defendants point out that Mr. Allred is an attorney and his Declaration states that the Motion is brought in good faith. However, Mr. Allred is not “counsel of record, ” as required by the statute. Therefore, his Declaration does not satisfy the requirements of the statute.

         Defendants further argue that any failure was subsequently cured when counsel filed a Certificate of Counsel on November 6, 2019.[23] However, this was done only after Plaintiffs pointed out that Defendants had failed to comply with the requirements of § 144. Moreover, the statute requires the affidavit be accompanied by the certificate of counsel. Defendants' late filing did not accompany the affidavit and the timing of it makes the Motion untimely under ยง 144. These ...


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