Shuler et al v. Duke et al, No. 2:2016cv00501 - Document 158 (N.D. Ala. 2018)

Court Description: MEMORANDUM OPINION AND ORDER OVERRULING and DENYING Plaintiffs' 157 MOTION to Have Judge Lynwood Smith Declared Disqualified From Hearing Their Motion to Disqualify Judge Virginia Emerson Hopkins and to Have His Ruling Declared Void Because of Conflict of Interest that Smith Failed to Disclose. Signed by Chief Judge Karon O Bowdre on 5/31/2018. (JLC)

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Shuler et al v. Duke et al Doc. 158 FILED 2018 May-31 AM 08:55 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ROGER SHULER and CAROL SHULER, Plaintiffs, vs. LIBERTY DUKE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:16-cv-501-VEH MEMORANDUM OPINION AND ORDER The plaintiffs previously filed a “Motion to Disqualify Judge [Virginia Emerson Hopkins] for Bias or Prejudice Under 28 U.S. Code 144 and the Due Process Clause of the U.S. Constitution.” (Doc. no. 150 (alteration supplied)). As Chief Judge of the United States District Court for the Northern District of Alabama, I ordered that motion to be referred to Senior Judge C. Lynwood Smith, Jr., for disposition. (Doc. no. 151.) Judge Smith’s Memorandum Opinion and Order denying plaintiffs’ motion was entered on April 3, 2018. (Doc. no. 155.) Still not satisfied,1 plaintiffs filed a “ Motion to Have Judge Lynwood Smith 1 Moving to disqualify judges with whom they disagree has become a hallmark of these plaintiffs’ tactics. In this case alone, they have filed five such motions. (Docs. 11, 27, 130, 150, 157). And a brief search of their filings in this court reveals at least four other such motions in two different cases. See Case No. 10-cv-01215-AKK (doc. 50); 10-AR-1271-S (docs. 3, 48, 57). Dockets.Justia.com Declared Disqualified From Hearing Their Motion to Disqualify Judge Virginia Emerson Hopkins and to Have His Ruling Declared Void Because of Conflict of Interest that Smith Failed to Disclose.” (Doc. no. 157). Specifically, plaintiffs’ motion alleges: “1. One of the primary defendants in this matter is Rob Riley, son of former Gov. Bob Riley. Most of the other defendants are politically or professionally connected to Rob and Bob Riley.” “2. According to published reports, Judge Lynwood Smith and Bob Riley are cousins. That means Judge Smith is related to Defendant Rob Riley.” “3. No wonder Judge Smith denied the Shulers’ motion to disqualify Judge Virginia Emerson Hopkins for obvious bias and prejudice. He obviously is biased and prejudiced toward defendants who either are members of his family and [sic] connected to members of his family.” Id. at 2, ¶¶ 1-3. The statutory provision relevant to the issue raised by plaintiffs’ motion is codified in 28 U.S.C. § 455, and the pertinent portions read as follows: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: ... (5) He or his spouse, or a person within the third degree of 2 relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding. ... (d) For the purposes of this section the following words or phrases shall have the meaning indicated: (1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation; (2) the degree of relationship is calculated according to the civil law system; . . . . 28 U.S.C. § 455 (emphasis and ellipses supplied). In response to the plaintiffs’ present motion, Judge Smith submitted an affidavit describing his genealogical relationship to Rob Riley, and demonstrating that the degree of their kinship, “calculated according to the civil law system,” is seven degrees — far more than the three degrees of relationship proscribed by 28 U.S.C. § 455(b)(5). Accordingly, the provisions of 28 U.S.C. §§ 455 do not support 3 plaintiffs’ motion and Judge Smith was not disqualified from ruling on the motion referred to him. Plaintiffs did not present any evidence indicating that Judge Smith had a personal bias or prejudice in favor of or against any party to this proceeding prior to April 9, 2018, the date on which the subject motion was filed, or that he had personal knowledge of any of the evidentiary facts of this controversy, disputed or otherwise. Thus, no legitimate basis arises for questioning his impartiality when denying plaintiffs’ motion to disqualify Judge Hopkins. Accordingly, the court ORDERS that “Plaintiffs’ Motion to Have Judge Lynwood Smith Declared Disqualified From Hearing Their Motion to Disqualify Judge Virginia Emerson Hopkins and to Have His Ruling Declared Void Because of Conflict of Interest that Smith Failed to Disclose” is OVERRULED and DENIED. DONE and ORDERED this 31st day of May, 2018. ____________________________________ KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE 4

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