Klayman v. Fox

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Plaintiff,
Civil Action No. 18-1579 (RDM)
v.
HAMILTON FOX, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Request for Voluntary Recusal. See Dkt. 4. For the
reasons below, the Court will DENY the request.
On July 3, 2018, Plaintiff Larry Klayman filed the present action against four members of
the District of Columbia Office of Disciplinary Counsel (“ODC”) and the ODC itself. Dkt. 1 at
1. He alleges that Defendants “intentionally violated [his] statutory, constitutional[,] and other
rights due to [his] political beliefs, public interest activism, and gender, pursuant to their own
individual biases, prejudices, political views, loyalties, and allegiances.” Id. at 2 (Compl. ¶ 1).
This deprivation of rights purportedly occurred through the ODC’s investigation of an ethics
complaint, which Klayman argues was motivated in large part by his outspoken advocacy for
conservative causes. See, e.g., id. at 9–10 (Compl. ¶¶ 41–46). Relevant here, he supports that
argument by reference to the fact that two of the individual defendants “donated significant sums
of monies to Hillary Clinton and Barack Obama as well as other liberal Democrats.” Id. at 9
(Compl. ¶ 42); see also id. at 19–20 (Compl. ¶ 92) (“This bias and thus mindset is clearly present
with regard to the Defendants herein, several of whom have donated to politicians and political
candidates who support these causes and who oppose and have vilified the President
publically.”).
Klayman now asks that I recuse myself on the basis of past political activity and
government service, all of which occurred before I was appointed to the bench. In particular,
Klayman references (1) political contributions I made between 1999 and 2013; (2) my
appointment to a position in the Department of Justice by President Clinton; (3) my volunteer
work on political campaigns; and (4) political contributions made by others from the law firm at
which I was a partner before my appointment. See Dkt. 4 at 1–2. Plaintiff argues that these
actions, which he asserts evince “a noticeable lack of Republican or conservative interests,” id. at
2, create “the appearance of non-partiality,” id. at 4. Finally, Plaintiff observes that “regrettably
we live in a highly polarized world which is dividing the nation to degree never before
experienced by the American people.” Id. at 3.
The Court understands Plaintiff’s concern regarding polarization. It does not share his
view, however, that the remedy for such polarization is for judges to accept the suggestion that
the process of judging has anything to do with the past political activity or public service of
judges. It does not. The statute governing the disqualification of federal judges, 28 U.S.C.
§ 455, requires recusal “in any proceeding in which [a judge’s] impartiality might reasonably be
questioned,” id. “It is, of course, ‘an inescapable part of our system of government that judges
are drawn primarily from lawyers who have participated in public and political affairs.’”
Higganbotham v. Okla. ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003)
(quoting United States v. Alabama, 828 F.2d 1532, 1543 (11th Cir. 1987)). Judges, however,
“separate themselves from politics when going on the bench,” MacDraw, Inc. v. CIT Grp. Equip.
Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998), and, as a result, “[t]he fact of past political activity
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alone will rarely require recusal,” Higganbotham, 328 F.3d at 645. In a case such as this, recusal
is not only unwarranted, see In re Mason, 916 F.2d 384, 387 (7th Cir. 1990) (observing that prior
campaign contributions do not create an appearance of impropriety); id. (noting cases in which
“sponsorship and other indicia of political support in bygone days” were held “not [to] disqualify
a judge”), but would foster the erroneous—and corrosive—perception that judicial decisions are
based on politics, rather than the relevant law and facts.
Although a judge must carefully consider whether his or her past associations and
activities create the appearance of impartiality, “a judge has as much obligation not to recuse
himself where there is no reason to do so as he does to recuse himself when the converse is true.”
United States v. Greenspan, 26 F.3d 1001, 1005 (10th Cir. 1994). This is such a case.
The motion is, accordingly, DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 19, 2018
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