United States District Court, E.D. Wisconsin
For Leo Hardy, Plaintiff (2:13-cv-00769-JPS): Joel Feldman, LEAD ATTORNEY, Arthur Loevy, Elizabeth Mazur, Jonathan I Loevy, Roshna B Keen, Russell Ainsworth, Theresa Kleinhaus, Heather Lewis Donnell, Loevy & Loevy, Chicago, IL; Robin Shellow, The Shellow Group, Milwaukee, WI.
For City of Milwaukee, Defendant (2:13-cv-00769-JPS): Jeffrey T Nichols, Samuel C Hall, Jr, Crivello Carlson SC, Milwaukee, WI; Jenny Yuan, Miriam R Horwitz, Susan E Lappen, Milwaukee City Attorney's Office, Milwaukee, WI.
For Michael Gasser, Officer Keith Garland, Jr, Michael Valuch, Jr, Defendants (2:13-cv-00769-JPS): Jeffrey T Nichols, Samuel C Hall, Jr, Crivello Carlson SC, Milwaukee, WI; Jenny Yuan, Susan E Lappen, Milwaukee City Attorney's Office, Milwaukee, WI.
For Unknown, Sued as Unknown Milwaukee Police Department Employees and Officers, Defendant (2:13-cv-00769-JPS): Jenny Yuan, Milwaukee City Attorney's Office, Milwaukee, WI.
For Patrick Coe, Rolando Hernandez, Defendants (2:13-cv-00769-JPS): Jenny Yuan, Susan E Lappen, Milwaukee City Attorney's Office, Milwaukee, WI.
For Chavies Hoskin, Plaintiff (2:13-cv-00920-JPS): John L Stainthorp, Sarah J Gelsomino, LEAD ATTORNEYS, Ben H Elson, George Flint Taylor, Janis Susler, People's Law Office, Chicago, IL; Robin Shellow, The Shellow Group, Milwaukee, WI.
For City of Milwaukee, Edward Flynn, Defendants (2:13-cv-00920-JPS): Susan E Lappen, LEAD ATTORNEY, Jenny Yuan, Miriam R Horwitz, Milwaukee City Attorney's Office, Milwaukee, WI; Jeffrey T Nichols, Samuel C Hall, Jr, Crivello Carlson SC, Milwaukee, WI.
For Edith Hudson, Jason Mucha, Michael Vagnini, Thomas Maglio, Defendants (2:13-cv-00920-JPS): Jeffrey T Nichols, Samuel C Hall, Jr, Crivello Carlson SC, Milwaukee, WI; Jenny Yuan, Susan E Lappen, Milwaukee City Attorney's Office, Milwaukee, WI.
For Edward Earl Wright, Plaintiff (2:14-cv-01224-JPS): Ronald Bornstein, Bornstein Law Offices SC, Milwaukee, WI.
For Michael Vagnini, Jacob Knight, Jeffrey Cline, Gregory M Kuspa, Jason Mucha, Edward A Flynn, City of Milwaukee, Defendants (2:14-cv-01224-JPS): Grant F Langley, Jenny Yuan, LEAD ATTORNEYS, Miriam R Horwitz, Susan E Lappen, Milwaukee City Attorney's Office, Milwaukee, WI.
For Jermain Caine, Plaintiff (2:14-cv-01548-JPS): George Flint Taylor, John L Stainthorp, Sarah J Gelsomino, Ben H Elson, People's Law Office, Chicago, IL; Robin Shellow, The Shellow Group, Milwaukee, WI.
For City of Milwaukee, Defendant (2:14-cv-01548-JPS): Jeffrey T Nichols, Samuel C Hall, Jr, Crivello Carlson SC, Milwaukee, WI; Miriam R Horwitz, Susan E Lappen, Milwaukee City Attorney's Office, Milwaukee, WI.
For Edward Flynn, Edith Hudson, Jason Mucha, Michael Vagnini, Jacob Knight, Jeffrey Dollhopf, Defendants (2:14-cv-01548-JPS): Jeffrey T Nichols, Samuel C Hall, Jr, Crivello Carlson SC, Milwaukee, WI; Susan E Lappen, Milwaukee City Attorney's Office, Milwaukee, WI.
J.P. Stadtmueller, United States District Judge.
The above-captioned cases come before me on a Milwaukee Deputy City Attorney's separately-filed motions, which request that I disqualify myself from further participation in each of these cases. The cases all stem from alleged strip searches conducted by officers of the Milwaukee Police Department. I have been assigned
to preside over each case, but the defendants now request that I step aside.
In my role as presiding judge, I have rendered decisions that are unfavorable to the City. However, I have also decided against the plaintiffs on important issues. For instance, I recently reduced a jury award in favor of one of the plaintiffs by $446,000.00, or a little less than 90%. This is often the nature of the adversarial process: each party wins some and loses some.
Along the road, I have also admonished the City's attorneys to conduct themselves professionally and in accordance with my expectations. Shortly after I began receiving strip search cases, I made clear that I intended to resolve the cases expeditiously, noting:
[T]he City is going to be pretty busy defending them....And you may have to get outside counsel; but these cases are going to move in this branch of the court, as all civil cases are. You know, [R]ule [O]ne of the Federal Rules of Civil Procedure was put there long before we had the Civil Justice Reform Act of 1990; and that rule is the touchstone of many of us in terms of ensuring that the orderly administration of justice go forward and these cases not languish.
Unlike fine wine, they do not get better with age. And whether it's the Milwaukee Police Department or the Wisconsin Department of Corrections, very sadly we have a cornucopia of litigation involving prisoner rights and police officers who apparently stray from that which we expect from the law enforcement community. And the sooner these cases are addressed in open court, the sooner we will have a law enforcement community that can be proud of their work and the community proud to have them working. But, unfortunately, we do not see that today particularly in light of these cases.
So, Ms. Lappen, I would suggest that you go back to Mr. Langley [the City Attorney]...and have him assign appropriate resources because we're going to bring these cases to a conclusion whether in July or September.
(Case No. 13-CV-1114, Docket #20 at 4:5-5:4). In each of the respective trial scheduling orders in these cases, I stated that, " while every litigant is entitled to their day in court, they are not entitled to intrude upon someone else's day in court." ( See, e.g., Case No. 13-CV-769, Docket #31 at 7; Case No. 13-CV-1114, Docket #17 at 7; Case No. 13-CV-1224, Docket #25 at 7). Consistent with these admonitions, I fully expected the City Attorney's office to move the cases along expeditiously. I also expect every lawyer appearing before me, as an officer of the court, to adequately prepare for trial, to work cooperatively with opposing counsel, and to avoid submitting poorly-supported legal arguments. To be sure, adversaries and litigants remain free to carry on as they would please in protracting their dispute(s). However, the wise exercise of judicial stewardship of limited taxpayer resources will not do service in providing a forum or safe harbor to do so.
Unfortunately, representatives of the Milwaukee City Attorney's office have occasionally failed to meet my expectations. Despite an Assistant City Attorney having agreed " wholeheartedly on getting these [cases] resolved as quickly as possible" ( Id. at 5:5-8), the City has often found it difficult to cooperate with the plaintiffs, resulting in significant wasted time and resources. Thus, on several occasions, I let the Assistant City Attorneys know that they were not meeting my expectations. But, throughout the course of this litigation,
I have always approached the parties' positions evenhandedly, providing detailed legal analysis whenever I have resolved disputed matters before me.
Of course, what I know to be true is ultimately irrelevant to resolution of the disqualification motions at hand, as I must employ an objective standard to resolve them. I relay my perspective on this only to make clear that, as I do in every case, I have approached each case fairly. Suffice it to say that I was more than surprised--indeed, taken aback--by the City's motions. To be sure, in what will soon become 28 years as an Article III district judge, I will have been assigned well over 7,000 civil cases, including more than 70 involving the City of Milwaukee and/or its agents and employees as named parties. Yet, it appears that the motions before me today represent but only the second instance of a kerfuffle in pending civil litigation in which I have been asked to step aside. The first dates all the way back to May of 1988 in Bassler v. Eisenberg, Case No. 87-CV-1345. More on Bassler later.
In addressing each of the pending motions, I will first provide a bit of background about the separate cases and the City's motions. I will then discuss the legal standard governing disqualification requests. Finally, I will apply that standard to the City's pending motions. As appears from the analysis of both the relevant facts and the applicable law which follows, my fairness and impartiality cannot reasonably be questioned. Thus, I am obliged to deny the City's motions that I be disqualified.
1.1 Procedural Posture of the Cases
Each of the plaintiffs in the above-captioned cases--Leo Hardy, Chavies Hoskin, Edward Wright, and Jermain Caine--alleged that they had been strip searched by police officers employed by the Milwaukee Police Department (" MPD" ). The cases were assigned to me, though each is at a different stage of proceedings.
The newest case-- Caine v. Milwaukee, Case No. 14-CV-1548--is scheduled for a trial to begin on January 11, 2016. On March 20, 2015, I held a scheduling conference in the case, at which I made a comment that forms a portion of the basis for the City's disqualification request. There are no dispositive motions outstanding in Caine.
Wright v. Vagnini, Case No. 14-CV-1224, is in a posture similar to Caine. Wright is set for trial to begin on October 19, 2015, and there are no dispositive motions outstanding.
Hoskin v. City of Milwaukee, Case No. 13-CV-920, was originally assigned to me, and I denied the City's motion for judgment on the pleadings. I then declined to adjourn the July 14, 2014 trial date in the case, after which the parties agreed to consent to proceed before Magistrate Judge William Callahan. Magistrate Callahan adjourned the trial date and presided over the case until he relinquished it in preparation for retirement. At that juncture, with the City's motion for summary judgment pending, Mr. Hoskin refused to proceed before Magistrate Judge William Duffin. As a result, the case was returned to me.
The oldest case, Hardy v. City of Milwaukee, Case No. 13-CV-769, was tried to a jury. On August 7, 2014, the jury returned a verdict, finding that Mr. Hardy had been illegally stopped and searched but not illegally strip-searched. The jury awarded Mr. Hardy a total of $506,000.00,
composed of $6,000.00 in compensatory damages and $500,000.00 in punitive damages. The City then filed two post-trial motions seeking to overturn the jury's verdict. As I have already noted, I granted one of those motions in part, significantly reducing the jury's punitive damages award. The City points to two statements from my order granting that reduction as evidence in favor of the current motions.
Finally, I received three other strip search cases that are no longer pending before me (and so are not subject to the City's disqualification motions). Two of those cases are now closed: Venable v. City of Milwaukee, Case No. 13-CV-1114, and Bohannon v. City of Milwaukee, Case No. 13-CV-1224. In Venable, I denied the City's motion for summary judgment. The City appealed that decision, but reached a settlement with the plaintiff while the appeal was pending. In Bohannon, I also denied the City's motion for summary judgment (which was identical in many ways to the City's motion for summary judgment in Venable ). The City did not appeal my order in Bohannon. Instead, the parties prepared to go to trial. I held a final pretrial conference, at which I made statements critical of the City's approach to handling the case. Those statements also form a portion of the basis for the City's pending motions. In the end, Bohannon settled prior to trial and was dismissed. In the third case, Freeman v. City of Milwaukee, Case No. 13-CV-918, I denied motions from the City for a more definite statement and for judgment on the pleadings. The parties thereafter consented to proceed before Magistrate Judge Nancy Joseph; that case remains pending.
1.2 The City's Recusal Motions
The City filed four separate motions to disqualify me, one each in Caine, Wright, Hoskin, and Hardy. In support, the City cites to four separate statements that I have made: two from my post-trial order in Hardy, one from the final pretrial conference in Bohannon, and one from the scheduling conference in Caine. The City argues that, in light of those statements, a reasonable observer could question my impartiality. Thus, according to the City, I am required to recuse myself under 28 U.S.C. § 455(a).
In the balance of today's order, I will refer to the statements in question as the Flynn statements, the Vagnini statements, the Bohannon ...