Alaska Employment Law

Judge Russel Holland has “decline[d]” Judge Sedwick’s request to resolve Victor Kohring’s recusal motion, holding that Sedwick must resolve it himself.  Holland distinguished between recusal motions based on 28 USC § 144 (where a different judge must resolve challenges based on “personal bias or prejudice”) and challenges based on 28 USC § 455 (where the sitting judge must resolve challenges based on “questioned impartiality”).  Kohring filed his motion under the latter statute.

In his February 6th Order, Holland held:

Upon receipt of Chief Judge Sedwick’s order of referral, procedural inquiries were undertaken at my direction to ascertain how defendant’s Section 455 motion should be developed, evaluated, and ruled upon. Those inquiries quickly led to clear Ninth Circuit authority that a motion to recuse based upon Section 455 “is addressed to, and must be decided by, the very judge whose impartiality is being questioned.” In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994). 

Circuit Judge Kozinski expressed some surprise and a lack of comfort with the foregoing holding. Id. I do not share those misgivings. Section 455 is very specific. It requires the judge to disqualify himself where his impartiality might reasonably be questioned. It is clear that Congress made a calculated decision, presumably in the belief that the judge involved is in the best position to evaluate his own knowledge and feelings. Without saying so, Congress plainly relies upon the integrity of judges and their ability to step utside themselves, when necessary, in order to evaluate whether or not to recuse. In this regard, Judge Kozinski’s evaluation of whether or not he should recuse in In re Bernard is both useful and informative.

In consideration of the foregoing, I decline the reassignment of defendant’s recusal request.

UPDATE: On February 7th, Judge Sedwick accepted Judge Holland’s Order as “the law of the case” and directed the government to file any opposition by February 25th, and Kohring to file any reply by March 10th.  Sedwick, thus, will resolve Kohring’s § 455 recusal motion.