United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY, District Judge.
Plaintiff Matthew Stephen Akins has sued the City of Columbia and Boone County, Missouri, the Boone County Prosecuting Attorney and assistant prosecutors, and Columbia police officers, for alleged violation of his civil rights in relation to traffic stops, arrests, charges, and other activities. Akins moves for recusal or disqualification of the undersigned, arguing the undersigned lacks authority to preside over this case and has personal biases. [Doc. 15.] The motion is denied.
A. Authority of a senior judge
Akins's primary argument is that the undersigned "lacks the congressional authority to hear this case" because she is a judge in senior status. [Doc. 15, p. 4]. The Eighth Circuit has addressed and rejected this argument, in two cases also involving a challenge to the authority of the undersigned. See Rodgers v. Knight, 781 F.3d 932, 943 (8th Cir. 2015); and Williams v. Decker, 767 F.3d 734, 743 (8th Cir. 2014), cert. denied, 135 S.Ct. 1418 (2015). The Court must therefore reject it.
Akins nevertheless suggests that Rodgers and Williams can be distinguished, by focusing on the effect of the appointment of a successor judge once a judge takes senior status, a narrower aspect of the authority issue and one the Eighth Circuit did not explicitly mention in its more general dispatch of the issue in Rodgers and Williams. The argument is unpersuasive. In Williams, the Eighth Circuit explained:
Williams and Porter also advance the novel argument that the district court judge lacked authority to adjudicate this matter due to her status as a senior district court judge. This contention is without merit. "Senior judges are fully commissioned Article III judges, and the Supreme Court has expressly held that upon assuming senior status, a senior judge does not surrender his commission, but continues to act under it.'" Bank v. Cooper, Paroff, Cooper & Cook, 356 Fed.Appx. 509, 511 (2d Cir.2009) (summary order) (quoting Booth v. United States, 291 U.S. 339, 350-51, 54 S.Ct. 379, 78 L.Ed. 836 (1934)), cert. denied, ___ U.S. ___, 131 S.Ct. 93, 178 L.Ed.2d 28 (2010); see also Nguyen v. United States, 539 U.S. 69, 72, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003) (stating that a senior circuit judge is "of course, [a] lifetenured Article III judge[ ]"); 28 U.S.C. § 371(b)(1) ("Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service....").
767 F.3d at 743.
The Eighth Circuit included citation to Booth, in which the Supreme Court addressed a challenge to the authority of a judge, who has retired, to continue to perform official duties:
The first question asks, in effect, whether a United States Judge, upon retirement, relinquishes or retains his office. The answer is to be found in the act of Congress authorizing retirement.[ ] That act provides for resignation and for retirement. In referring to the former it uses the expression When any judge * * * resigns his office * * *, ' and provides for continuance of compensation after resignation. In contrast it declares, But, instead of resigning, any judge * * * who is qualified to resign under the foregoing provisions, may retire, upon the salary of which he is then in receipt, from regular active service on the bench, * * *' not, be it noted, from office. The retiring judge may be called upon by the senior circuit judge to perform judicial duties in his own circuit or by the Chief Justice to perform them in another circuit, and be authorized to perform such as he may be willing to undertake....
291 U.S. at 349-50. The Supreme Court held that a judge who retires does not relinquish office, but simply retires from regular, active service:
[I]t is common knowledge that retired judges have, in fact, discharged a large measure of the duties which would be incumbent on them, if still in regular active service.... [A retired judge] does not surrender his commission, but continues to act under it. He loses his seniority in office, but that fact, in itself, attests that he remains in office. A retired District Judge need not be assigned to sit in his own district. [ Maxwell v. United States, 3 F.2d 906 (4th Cir. 1925), aff'd 271 U.S. 647.] And if a retired judge is called upon by the Chief Justice or a Senior Circuit Judge to sit in another district or circuit, and he responds and serves there, his status is the same as that of any active judge, so called. [ McDonough v. United States, 1 F.2d 147 (9th Cir. 1924).] It is impossible that this should be true, and that at the same time the judge should hold no office under the United States.
Id. at 350-51 (emphasis added).
If, as Akins argues, 28 U.S.C. § 294, Assignment of Retired Justices or Judges to Active Duty, means a judge who has taken senior status must be designated and assigned by the chief judge or judicial council of his circuit to perform duties in the circuit in which he was originally appointed, before such judge may perform any duties, [Doc. 15, p. 7], it is a sea change the Eighth Circuit neither expressed nor signaled in Williams, and in fact is unlikely to have embraced given its citation to Booth. Furthermore, it is as well within the "common knowledge" today as it was when Booth was decided that "retired judges... discharge a large measure of the duties which would be ...