I was originally going to give Judge Bea a "Right on!" for this opinion. But the more I think about it, the more I'm starting to become convinced that I shouldn't even give him a high five.
Before I discuss the opinion, let me give you my internal hypothetical that I think changed my mind:
Imagine that all of the district court judges in Montana are driving back to their hotel room in a car while attending, say, a Ninth Circuit conference in Missoula. (You might be thinking that that's an awfully big car, a minivan will work just fine, since there's only six of 'em.) Judge Molloy is driving, and the other five judges start making a huge ruckus, toying around and throwing things. As a result, Judge Molloy is distracted, and accidentally runs a red light, and hits a car driven by Abe Loracs, a California resident on vacation in Montana, seriously injuring him.
Mr. Loracs subsequently sues both the driver (for running the red light) and the passengers (for distracting the driver), and since there's complete diversity, the lawsuit ends up in federal court.
The case then gets assigned to Judge Molloy. Who refuses to recuse himself.
Mr. Loracs goes ballistic. "What the hell?! Surely Judge Malloy has to recuse himself from hearing a lawsuit against him!" So Mr. Loracs appeals to the Ninth Circuit.
But the Ninth Circuit affirms. Holding that pursuant to the "law of necessity," Judge Molloy doesn't have to recuse himself, since all of the district court judges in Montana were defendants and hence "when all are disqualified, none are disqualified." Moreover, adding insult to injury, Mr. Loracs can barely contain himself as he reads the first paragraph of the Ninth Circuit's opinion, which says: "An old fable tells tale of a Pope, who, convinced of his
own grave sin, called on his cardinals to judge him. “No,
Your Holiness!” they replied. “We cannot sit in judgment
over you. You must be your own judge.” And so, faced with
the necessity his soul be judged, the Pope judged himself. He
confessed his sin and abdicated the Holy See. He is now
commemorated as a saint."
Crazy, right?
Not as crazy as you might think, apparently.
Sure, Judge Bea's opinion holds, we could solve this problem, if we felt like it. "It may well have been possible to find an
unconflicted Article III judge somewhere in the country who
could hear [this] case, perhaps by transferring the case to a
different district or assigning a judge from another district to
sit by designation." But it we don't feel like doing that, we don't have to. Judge Molloy can indeed hear a lawsuit in which he's directly named as a defendant.
And those quotes are from today's actual opinion, not just a hypothetical.
I'll be the first to admit that, as I said, when I first read Judge Bea's opinion, it didn't strike me as crazy at all. Indeed, it seemed entirely reasonable. In large part, I think, because the underlying lawsuit here is a crazy one litigated in pro per. Ron Glick thinks that a large portion of the world is out to get him, and so names a plethora of defendants, including every federal district court judge in Montana, as a defendant, alleging that they're part of the conspiracy. Faced with such a claim, I'm in a great deal of sympathy with Judge Bea's concept that we're not required to move heaven and earth in response to such absurd allegations. One dude in the alleged worldwide conspiracy can indeed go ahead and promptly dismiss it.
But the holding of Judge Bea's opinion is broader than that. And would mean that, even in the case I've hypothesized, Judge Molloy can still properly preside over the action.
That simply can't be right.
(I'm not going to discuss in detail Judge Bea's additional trick that says that Mr. Glick accidentally sued "all" district court judges in Montana, including future ones sitting by assignment. But I'll add that, among other things, this seems an implausible reading of the complaint, since Mr. Glick hardly thinks that the existing worldwide conspiracy would necessarily include any judge subsequently designated by assignment, regardless of identity.)
What I think is really driving Judge Bea's opinion is the same thing I've identified: that the present case is simply frivolous. In my view, that fact, combined with the rule of necessity, makes it entirely proper to let Judge Molloy continue to preside over the case despite being named as a defendant.
But Judge Bea's opinion expressly refuses to rely on such a distinction, saying: "We need not
now decide whether § 455(b)(5)(i) excepts, for example, a
situation in which a plaintiff’s claims against the presiding
judge are facially improper or frivolous." Indeed, to be even clearer, Judge Bea says expressly that his articulated rule is a categorical one: "The rule of necessity thus permits a
district judge to hear a case in which he is named as a
defendant where a litigant sues all the judges of the district."
Which means that Judge Molloy also gets to preside over the lawsuit against him in my hypothetical.
And that's wrong.
So, in the end, I think the right rule is a recusal exception (at least in the present context) for "necessity plus frivolousness," not merely "necessity". Because, in my mind, for a non-frivolous complaint against all six judges of the Montana federal district court, yeah, definitely, you've got to bring someone in from the outside.
Beyond a shadow of doubt.
