(Published) - In re Ottman, Bankr. Case No. 11-35219-SBB (recusal)

This opinion discusses when a bankruptcy judge accused of bias should be disqualified from hearing a case and explores the parameters of what is and is not objectionable conduct by the court.

Following the first day of a multi-day hearing on the debtors' second motion to modify their Chapter 13 plan, the debtors filed a motion to recuse Judge Sidney Brooks. The debtors argued that Judge Brooks should recuse himself because his criticism of debtors' counsel during the hearing was "unwarranted, prejudicial, and created an appearance of impropriety" such that recusal was warranted under 28 U.S.C. § 455. Counsel argued further that the judge's tone was "one of condescension, a profound lack of respect, and a manner that borders on scorn." The Chapter 13 trustee opposed recusal.

Based on its review of the transcript of the hearing, the court found that a reasonable person, knowing all the relevant facts, would not harbor doubts about Judge Brooks' impartiality. The court found that any confusion and frustration voiced by Judge Brooks during the hearing was a direct result of the inadequate courtroom presentation of debtors' counsel, and no evidence was presented that showed the court was unable to make a fair judgment in the case. The judge acknowledged that he has a duty to recuse himself where any of the statutory grounds set forth in [11 U.S.C.] § 455 exist; however 'there is a corresponding duty not to do so if cause for recusal has not been shown." Moreover, "[a] judge's impartiality is subject to an objective test which requires a judge to recuse himself when 'a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." In the context of a motion to recuse, "the reasonable person standard contemplates a well informed, thoughtful and objective observer, rather than a hypersensitive, cynical and suspicious person."

"In general, 'when a judge's words or actions are motivated by events originating within the context of judicial proceedings, they are insulated from charges of bias.' These include remarks which may be considered critical, or even hostile, to a party or its counsel." The court concluded that while the hearing transcript reflects confusion and frustration by the court as it attempted to follow a somewhat erratic and splintered presentation by debtors' counsel, the court's comments were based entirely on conduct observed at the hearing and "criticism of counsel is rarely grounds for recusal under the principles set forth by the Supreme Court."