Opinion
C.A. No. 09C-05-034 DCS Consolidated.
Submitted: July 8, 2011.
Decided: July 13, 2011.
Upon Defendant/Counterclaim Plaintiff, Steven Goldstein's Motion for Recusal — GRANTED Defendant's Motion For Costs and Expenses — GRANTED.
Scott L. Silar, Esquire, Wilmington, Delaware, Margolis Edelstein, Attorney for Margolis Edelstein.
David S. Eagle, Esquire, Wilmington, Delaware, Klehr, Harrison, Harvey, Branzburg Ellers, LLP, Attorneys for Klehr, Harrison, Harvey, Branzburg Ellers, LLP.
Thomas C. Marconi, Esquire, Wilmington, Delaware, Losco Marconi, P.A., Attorney for Steven Goldstein.
MEMORANDUM OPINION AND ORDER
This instant matter involves Defendant/Counterclaim Plaintiff's Motion in Limine to Recuse this judge, a former Register of Wills, from presiding over a trial involving breach of contract/collection actions for non-payment of legal fees filed separately by two law firms in 2009. The bills arose from representation of Defendant in estate and related issues in the Court of Chancery. Defendant has counterclaimed against one of the firms for breach of contract.
Defendant's counterclaim for negligence was dismissed on March 1, 2011.
Defendant does not allege actual bias by this judge. Rather, Defendant for the first time in this Superior Court action, specifically criticizes the involvement of the Court of Chancery appointed Chief Deputy Register of Wills throughout the estate litigation in Chancery Court and, by association, the Register of Wills. Defendant asserts that an objective assessment of the circumstances would lead to an appearance of bias and cast doubt on judicial impartiality.
Indeed, this court has made several rulings that were favorable to Defendant.
Plaintiffs oppose this motion for recusal. Plaintiffs argue that the motion was brought in bad faith, the Register of Wills' identity was a public record, there is no newly discovered information or evidence, Defendant's complaint is specious, and that any jury confusion could be cured by redaction of documents and/or instruction to counsel or the jury. Plaintiffs also contend that the recusal motion is a strategic and dilatory tactic designed to increase plaintiffs' expenses and a ploy to further avoid making good on his unpaid bills. Plaintiffs also move this Court to sanction Defendant for filing this in limine motion and Plaintiffs seek costs and fees incurred.
The first trial date, in March, was rescheduled mere days before trial when Defendant's attorney announced that a witness was ill.
Defendant was previously sanctioned by the Court for discovery violations.
FACTS
Margolis Edelstein (ME) and Klehr, Harrison, Harvey, Branzburg Ellers, LLP (KH) are law firms practicing in Delaware. ME represented Defendant in the Court of Chancery regarding a partnership matter and related Estate Litigation. KH also represented Defendant in the related Estate Litigation. Margolis Edelstein and Klehr Harrison allege that Defendant stopped paying billed invoices although he had signed representation agreements. They are seeking a total of $257,798.45 in combined unpaid legal fees.The Chancery Court litigation involved several issues, including the Register of Wills office appointment of an Estate Administrator in 2006, the Administrator's fees and costs, allegations of misconduct and breach of duty against the Administrator, pursuit of damages from the Administrator, and acquisition of estate properties. Plaintiffs have brought this Superior Court action to collect their legal fees.
Defendant counters that Plaintiff law firms inadequately, improperly, or illusorily represented his interests in Chancery Court and that his interests were adverse to the Register of Wills Office appointment of the Administrator. Defendant further alleges that said appointment and Plaintiffs' involvement in the Chancery Court litigation caused him financial loss of approximately $3,263,000.00 plus $600 per month loss of rent for an unspecified number of months.
Defendant's Reply Brief to Motion for Summary Judgment at 19.
Specifically, Defendant claims that he lost $349,844.35 in Administrator's counsel's fees and costs, $600 per month rent for the property located at 1401 North King Street, $114,000.00 in funds owed by the estate to Defendant for work performed, $2.3 million for the combined value of the contested properties that went to the Administrator's control, and $400,000.00 owed to him by his parents.
After numerous motions, hearings, conferences and a March trial date which had to be continued at Defendant's request, Defendant now brings this Motion for Recusal on the eve of trial which is scheduled to begin on July 13, 2011. On July 8, 2011, during the Court's fourth pretrial conference, the Court noted that at least one listed trial exhibit consisted of correspondence involving the Register of Wills office. The Court made it clear that this matter should be discussed at the conference to avoid problems or conflicts at trial the following week. Thereupon, Defendant's counsel announced that he intended to file a motion for recusal, at the urging of his client, despite the fact that the Court had formally put the parties on notice on March 1, 2011 that this judge had served as Register of Wills when the Administrator was appointed. He also revealed that he had planned to wait until after the pretrial conference to file the motion for recusal. The Court ordered that if he intended to file such a motion, he must do it by the close of business that day. Defendant then filed this motion that afternoon.
Although this case has been with this judge since February 2010, recusal was not imposed, sua sponte, because the ultimate focus was on the quality and quantity of legal services provided rather than the actual decisions of the Administrator.
Memorandum Opinion and Order at p. 3.
The facts are undisputed that all parties were aware since 2006, irrespective of this Court's notice, that this judge had served as Register of Wills in 2006 and that the Register of Wills office had appointed the contested Administrator. Defendant has not provided an explanation for waiting until four days before trial to file this motion.
For purposes of this Motion and Opinion, the Court will treat "recusal" and "disqualification" as synonymous. See, State v. Desmond, 2011 W.L. 91984, at *5, FN. 62 (Del. Super. Jan. 5, 2011)
DISCUSSION
Based on the parties' contentions, there are two issues now before the Court. The first issue is whether there is any merit to Defendant's Motion for Recusal. The other issue is whether Defendant, by waiting until the eve of trial, has waived any right to recourse.While the nature of Klehr Harrison's and Margolis Edelstein's representations of Defendant in Chancery Court concerned the Administrator and subsequent actions, proposals, and costs of the Administrator, it should be noted that the Chancery Court never removed the Administrator and that the matter ended when Defendant agreed to a settlement which was approved by that Court. The Superior Court breach of contract/collections case should not be a relitigation of these issues nor is it an appeal of the Chancery Court proceedings.
Nevertheless, because the Defense case seems to advance the position that the challenges to the Administrator were complicated and, contradictorily, that those challenges required little time and effort on the part of the law firms to protect Defendant's interests and eventually negotiate a settlement, it has now become clear that the Defendant will attempt to stress his dissatisfaction with the continuing role that the Administrator had in this matter and all that flowed from that appointment by the Register of Wills Office. Indeed, the Defendant, in the recusal motion, characterizes the Chancery Court proceedings as having been "initiated . . . to overturn [that appointment]" and Defendant cites the parties' referenced or alleged documents, emails, and the involvement of Court of Chancery appointed Chief Deputy Register of Wills to support his recusal motion.
Defendant's Motion to Recuse at ¶ 10.
Defendant's Motion to Recuse at 11.
Hence, the motion for recusal, based on this judge's former position as head of the office that appointed the Administrator, cannot be summarily dismissed as a strategic measure or judge shopping.
THE MOTION FOR RECUSAL
Judicial impartiality is a "fundamental principle of the administration of justice." It is well settled under Delaware law that a judicial officer must recuse herself if "there is a reasonable basis to question her impartiality." This includes situations in which the judge has personal bias or prejudice concerning one of the parties or personal knowledge of disputed evidentiary facts concerning the case. Further, pursuant to Rule 2.11(A) and (A)(4)(b) of the Delaware Judges' Code of Judicial Conduct (2008), a judge has a direct responsibility to avoid participation in proceedings whenever her impartiality might be reasonably questioned, including the instance where the judge served in governmental employment . . . concerning the proceeding.Thus, when faced with a potential conflict, the Court is required to engage in a two part analysis. First, the Court must subjectively determine if she can hear the case free of bias. Second, even if the Court is satisfied and finds that there is no actual bias, there may be situations where, absent actual bias, the appearance of bias may cause doubt as to the judge's impartiality. When this occurs, the judge must then objectively determine whether there is an appearance of bias sufficient to cast doubt on her impartiality. If a judge's decisions or demeanor would cause an objective, reasonable, observer viewing the circumstances to conclude that a fair or impartial hearing is unlikely, then recusal is appropriate. In other words, the question to be answered is whether an objective observer would entertain reasonable questions about the judge's impartiality, thus warranting recusal. The totality of the circumstances must be considered to determine whether there are sufficient grounds to doubt the Court's impartiality. However, in the absence of any objective basis for bias, the Court is not obligated to recuse herself from the proceedings. Thus, the Court should carefully consider the decision to recuse herself, and should be convinced that the two previously stated conditions are met.
In the instant case, there is no allegation that this judge is personally biased or had a significant role in events leading up to the Chancery Court litigation.
Los v. Los, 595 A.2d 381, 385 (Del. 1991).
Id.
Fritzinger v. State, 10 A. 3d 603, 611 (Del. 2010). See also Stevenson v. State, 782 A.2d 249, 258 (Del. 2001).
Gattis, 955 A. 2d at 1285.
Fritzinger, 10 A.3d at 613.
Desmond, 2011 WL 91984, at *6 (`A judge's duty to recuse or disqualify is complementary to, but not greater than, his or her baseline duty not to recuse in the absence of any objective basis).
Id.
Also to be taken into consideration is the Delaware Judges' Code of Judicial Conduct Rule 2.7(A). That rule, the "Responsibility to Decide", states that "[a] judge shall hear and decide matters assigned, unless disqualified". Thus, when read with Rule 2.11, a judge has a "duty to sit" unless the judge is genuinely convinced of the need for recusal or disqualification. Hence, the decision to recuse is not one that should be made lightly, "because to do so is contrary to the Delaware Judges' Code of Judicial Conduct and [leaves the] case as one of [the recused or disqualified judge's] colleague's problems to deal with" and unreasonably burdens fellow judges.
Id. At *10
Id.
Id.
In the instant case, according to the Defendant's Motion for Recusal, the decisions of the Register of Wills Office not only provided a context for Plaintiffs' breach of contract/collection action but also formed the basis from which all of the Chancery Court litigation and the unpaid legal fees flowed. In this motion, the Defendant has now alleged specific instances where the judge served in governmental employment (as a supervisor of the Chief Deputy) that arguably directly concerned the proceedings and which appear to be the source of Defendant's (unpaid) legal fees.
Now that these specific extra judicial concerns have been brought to the Court's attention, it is clear that this is a situation where future decisions made by this judge, in this case, might be viewed by a reasonable observer to conclude that this trial judge was not impartial and ultimately undermine confidence in the judicial process.
Under the totality of the circumstances, this judge objectively finds that such prior governmental service touched on this particular case in controversy sufficiently that there may be an appearance of bias sufficient to cast doubt on the Court's impartiality, and that an objective observer might question the Court's impartiality. Thus, the Court finds that recusal is appropriate.
Mindful of the fact that the court and parties have labored over pretrial matters for months, that such a determination will add to another judge's already overburdened caseload, and that recusal will unfortunately delay the trial, this decision to preserve the trial's integrity is not made lightly.
TIMING OF THE MOTION
Generally, the party seeking recusal must do so at the earliest opportunity after the facts upon which the motion is based become known. The motion should be timely. If Movant knew of the grounds for recusal and intentionally delayed in filing the motion, this is frowned upon by the Court, and the motion is more likely to be waived. Factors that may be considered when determining whether any delay was reasonable are whether: (1) the moving party has participated substantially in a trial or a pre-trial proceeding, (2) granting the motion would result in a waste of judicial resources, (3) the motion was made after the entry of judgment, and (4) the moving party can demonstrate a good reason for the delay.The timeliness requirement exists for two important reasons: (1) in order to prevent the concealment of an ethical issue in order to create a strategic advantage and (2) in order to avoid the wasting of judicial resources and prejudice to the non-movants. Here, the Defendant participated in numerous pretrial proceedings and has failed to demonstrate a good reason for the delay. Nevertheless, now that Defendant has, for the first time, brought to the attention of the court the alleged actions and involvement of the Chief Deputy of the Register of Wills Office, it is clear that Rule 2.11 (4)(b) takes precedence. Thus, while "there is a compelling policy reason for a judge not to disqualify himself at the behest of a party who initiates litigation against a judge" particularly on the eve of trial to prevent a litigant from judge shopping in the absence of any genuine and objective bias, Defendant has raised an issue of objective bias that cannot be ignored. Under the circumstances, the Court finds that recusal is not waived by Defendant's unexplained failure to raise this claim at an earlier date.
In re Owens Corning, 305 B.R. 175, 194 (D. Del. 2004).
Indeed, Defense counsel's revelation, at the pretrial conference, that he knew of grounds for recusal and intentionally withheld them until after the fourth pretrial conference, bolsters Plaintiffs' accusation that the delay was strategic.
Los, 595 A.2d at 385, cited in Desmond at *9.
However, because Defendant has failed to offer a valid reason for filing this Motion four (4) days before trial is scheduled to begin, and Defendant's eleventh hour motion has caused harm to the opposing parties, Defendant is to compensate plaintiffs for all reasonable costs and expenses incurred in responding to Defendant's recusal motion and trial preparation (including any witness travel) from the pretrial conference date until the trial date (July 8, 2011 — July 13, 2011).
CONCLUSION
THEREFORE, Defendant's Motion For Recusal is GRANTED and Plaintiff's Motion for Costs and Expenses is GRANTED. IT IS SO ORDERED.ORDER
UPON CONSIDERATION, Defendant's Motion to Recuse the present judge is GRANTED; and Plaintiffs' Motion for Costs and Fees is GRANTED.Plaintiffs are to submit, by July 30, 2011, affidavits setting forth the costs and fees incurred in responding to Defendants' Motion and in trial preparation from July 8, 2011 through July 13, 2011.
IT IS SO ORDERED this ___ day of ___, 2011.