Kondaur Capital Corporation v. Matsuyoshi ( 2021 )

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-FEB-2021
09:23 AM
Dkt. 122 ORD
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
–––O0O–––
KONDAUR CAPITAL CORPORATION, a Delaware
corporation, Plaintiff-Appellee, v.
LEIGH MATSUYOSHI, Defendant-Appellant,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE
PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10,
DOE ENTITIES 1-10, ALL PERSONS RESIDING WITH
AND ANY PERSONS CLAIMING BY AND THROUGH OR
UNDER THEM, Defendants
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 12-1-0185)
FEBRUARY 18, 2021
ORDER DENYING MOTION FOR RECUSAL
OR DISQUALIFICATION BY WADSWORTH, J.1/
Defendant-Appellant Leigh Matsuyoshi (Matsuyoshi) seeks
my recusal or disqualification in this appeal primarily because,
1/
Hawai#i Rules of Appellate Procedure ("HRAP") Rule 27(c) provides
that "[i]n addition to authority conferred by rule or law, a single judge
. . . may decide any motion before the court on which the judge . . . sits,"
subject to certain exceptions not applicable here. I decide the pending
motion pursuant to this rule, as well as the Hawai #i Supreme Court's repeated
acknowledgment, further discussed below, that "[t]he jurist requested to
recuse himself [or herself] is the most capable to determine those factors
. . . which would bear upon his or her capability to maintain the impartiality
that each matter must receive." TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai #i
243, 252, 990 P.2d 713, 722 (1999) (quoting State v. Ross, 89 Hawai #i 371,
375, 974 P.2d 11, 15 (1998)).
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
several years ago while in private practice, I represented
mortgagee banks in litigation arising out of the nonjudicial
foreclosure of other borrowers' mortgages. Matsuyoshi asserts
Hawai#i Revised Code of Judicial Conduct (HRCJC) Rule 2.11(a)2/
2/
HRCJC Rule 2.11(a) states:
(a) Subject to the rule of necessity, a judge shall
disqualify or recuse himself or herself in any proceeding in
which the judge's impartiality might reasonably be
questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice
for or against a party or a party's lawyer, or
personal knowledge of facts that are in dispute in the
proceeding.
(2) The judge knows that the judge, the judge's
spouse or domestic partner, or a person within the
third degree of relationship to either of them, or the
spouse or domestic partner of such a person is:
(A) a party to the proceeding, or an
officer, director, general partner, managing
member, or trustee of a party;
(B) acting as a lawyer in the proceeding;
(C) a person who has more than a de
minimis interest that could be substantially
affected by the proceeding; or
(D) likely to be a witness in the
proceeding.
(3) The judge knows that he or she, individually
or as a fiduciary, or the judge's spouse, domestic
partner, parent, or child, or any other member of the
judge's family residing in the judge's household, has
an economic interest in the subject matter in
controversy or in a party to the proceeding.
(4) RESERVED.
(5) RESERVED.
(6) The judge:
(A) served as a lawyer in the matter in
controversy, or was associated with a lawyer who
participated substantially as a lawyer in the
matter during such association;
(B) served in governmental employment and
in such capacity, participated personally and
substantially as a lawyer or public official
concerning the proceeding, or has publicly
expressed in such capacity an opinion concerning
the merits of the particular matter in
controversy;
(continued...)
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as her primary ground for recusal. Under this rule, I must
recuse if my impartiality3/ "might reasonably be questioned,"
including if I "served as a lawyer in the matter in controversy"
now before this court, HRCJC Rule 2.11(a)(6)(A), or "was a
witness concerning the matter [in controversy,]" id. Rule
2.11(a)(6)(C). Matsuyoshi contends that: (1) my impartiality
might reasonably be questioned "given [my] recent practice
history"; (2) my former representation of mortgagees in other
litigation, including in Bald v. Wells Fargo Bank (Bald), Civil
No. 13-00135 SOM/KSC, 2013 WL 3864449 (D. Haw. July 25, 2013),
concerned "the matter in controversy"; and (3) my February 14,
2014 declaration, filed in support of a request for judicial
notice in Bald v. Wells Fargo Bank, N.A. (Bald appeal), No. 13-
16622, 2017 WL 1433314 (9th Cir. Apr. 24, 2017), rendered me "a
witness concerning the matter [in controversy]."
I decline to recuse on these alleged grounds. My
former representation of other mortgagees in other nonjudicial
foreclosure litigation involving other borrower-mortgagors —
representation that ended over four years ago — does not provide
an objective basis to question my ability to be impartial in this
appeal. While in private practice, I simply acted as an
advocate, honoring my professional responsibilities to zealously
represent my clients. Further, my former representation is too
attenuated from the present appeal to constitute the same "matter
in controversy." Matsuyoshi has not established that the issues
in Bald or any other case are closely related to the issues
raised in this appeal or that I am a witness in the pending
2/
(...continued)
(C) was a witness concerning the matter;
or
(D) on appeal, previously presided as a
judge over the matter in another court.
(Asterisks omitted.)
3/
The HRCJC defines the term "impartiality" as follows:
"'Impartial,' 'impartiality,' and 'impartially' mean absence of bias or
prejudice in favor of, or against, particular parties or classes of parties,
as well as maintenance of an open mind in considering issues that come or may
come before a judge." HRCJC, "Terminology."
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matter, as I have no personal knowledge of any evidentiary facts
in the matter. Similarly, my former law firm colleagues withdrew
as counsel for the defendant-mortgagee in Bald over two years
ago. Therefore, I conclude that HRCJC 2.11(a) does not require
my recusal in this appeal.
Matsuyoshi further contends that I must recuse because
the same factors that purportedly require my recusal under HRCJC
Rule 2.11(a), create "an appearance of impropriety"4/ that compels
my recusal under HRCJC Rule 1.2.5/ I also decline to recuse on
this alleged ground. In light of the above facts, which are
elaborated below, Matsuyoshi has failed to establish that a
reasonable person, knowing all the facts, "would perceive as
materially impaired [my] independence, integrity, impartiality,
temperament, or fitness to fulfill [my judicial] duties" with
respect to this appeal. HRCJC, "Terminology" (defining
"[a]ppearance of impropriety").
As further explained below, "[Matsuyoshi's] Motion for
Recusal or Disqualification of Judge Clyde J. Wadsworth," filed
on December 21, 2020, is denied.
I. Background
A. The Appeal Before This Court
This case has a long and complex procedural history
that I need not detail here. The Hawai#i Supreme Court's
published opinion in Kondaur Capital Corp. v. Matsuyoshi, 136
Hawai#i 227, 230-35, 361 P.3d 454, 457-62 (2015), provides a
thorough explication of the factual and procedural background of
the case prior to late-2015.
In brief, Jun Matsuyoshi and others conveyed a
residential property located in Lîhu#e, Kaua#i (Property) by
4/
"'Appearance of impropriety' means conduct that reasonable minds,
with knowledge of all the relevant circumstances, would perceive as materially
impairing the judge's independence, integrity, impartiality, temperament, or
fitness to fulfill the duties of judicial office." HRCJC, "Terminology."
5/
HRCJC Rule 1.2 states: "A judge shall act at all times in a
manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary and shall avoid impropriety and the appearance
of impropriety." (Asterisks omitted.)
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warranty deed to Matsuyoshi in February 2007. Id. at 230, 361
P.3d at 457. The following month, Matsuyoshi signed a mortgage
on the Property (Mortgage) and a promissory note (Note) promising
to pay $500,000 to Resmae Mortgage Corporation (Resmae) in return
for a loan that Matsuyoshi had received. Id. Matsuyoshi
allegedly defaulted under the loan, and pursuant to the power of
sale in the Mortgage and Hawaii Revised Statutes (HRS) Chapter
667, Part I, Resmae's assignee, Resmae Liquidation Properties LLC
(RLP), foreclosed on the Mortgage. Id. On November 13, 2008,
RLP, now the mortgagee, bought the Property for $416,900.20 at a
nonjudicial foreclosure public auction held in Honolulu. Id. In
July 2010, a quitclaim deed was executed by RLP conveying the
Property to Plaintiff-Appellee Kondaur Capital Corp. (Kondaur).
Id.
On June 5, 2012, Kondaur filed a complaint for
possession of the Property against Matsuyoshi in the Circuit
Court of the Fifth Circuit (circuit court), which is the case
underlying this appeal. Id. at 231, 361 P.3d at 458. On
September 18, 2012, the circuit court entered judgment in favor
of Kondaur on its motion for summary judgment. Id. at 232, 361
P.3d at 459. Kondaur appealed; this court vacated the judgment
below; on certiorari review, the Hawai#i Supreme Court vacated
this court's judgment on appeal; and, thereafter, this court
ruled that summary judgment in favor of Kondaur was appropriate,
and affirmed the circuit court's judgment. See id. at 232-34,
361 P.3d at 459-61.
The Hawai#i Supreme Court granted certiorari and issued
its published opinion on November 23, 2015. In that opinion, the
supreme court clarified that "the duties set forth in Ulrich[ v.
Security Inv. Co., 35 Haw. 158 (Haw. Terr. 1939),] remain viable
law and are applicable to non-judicial foreclosures of real
property mortgages." Id. at 229, 361 P.3d at 456. As the court
stated:
Ulrich requires mortgagees to exercise their right to
non-judicial foreclosure under a power of sale in a
manner that is fair, reasonably diligent, and in good
faith, and to demonstrate that an adequate price was
procured for the property. In instances where the
mortgagee assumes the role of a purchaser in a
self-dealing transaction, the burden is on the
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mortgagee, or its quitclaim transferee or non-bona
fide successor, to establish its compliance with these
obligations. Its failure to do so would render the
foreclosure sale voidable and could therefore be set
aside at the timely election of the mortgagor.
Id. at 240, 361 P.3d at 467 (citations and footnotes omitted).
Thus, where, as here, the mortgagee is the purchaser in
a nonjudicial foreclosure sale, the mortgagee has the "burden to
prove in the summary judgment proceeding that the foreclosure
'sale was regularly and fairly conducted in every particular.'"
Id. at 241, 361 P.3d at 468 (quoting Ulrich, 35 Haw. at 168).
Because RLP had failed to satisfy its initial burden of showing
that the nonjudicial foreclosure sale had been conducted in a
manner that was fair, reasonably diligent, in good faith, and
would obtain an adequate price for the property, the mortgagor
did not have to raise a genuine issue of material fact. Id.Thus, the supreme court vacated the summary judgment ruling and
remanded the case to the circuit court for further proceedings.
Id. at 244, 361 P.3d at 471.
Following remand, the circuit court conducted a bench
trial on May 29 and 30, 2018.6/ On March 15, 2019, the court
entered: (1) Findings of Fact and Conclusions of Law After Trial
(FOFs/COLs); (2) a Writ of Ejectment; and (3) Final Judgment in
favor of Kondaur and against Matsuyoshi. Kondaur subsequently
filed a motion to tax costs and expenses and for an award of
attorneys' fees. On September 11, 2019, the circuit court
entered an order granting the motion and awarding Kondaur
attorneys' fees and costs in the respective amounts of
$140,600.61 and $10,536.77. This appeal followed.
On January 17, 2020, Kondaur filed a motion to dismiss
the appeal for lack of jurisdiction, contending that the appeal
was untimely. This court denied the motion on April 7, 2020.
Matsuyoshi filed her opening brief on June 17, 2020.
She raises numerous points of error concerning the circuit
court's written FOFs, oral findings of fact, COLs, other pretrial
and trial rulings, and the grant of Kondaur's fees and costs
motion. In sum, Matsuyoshi makes the following arguments:
6/
The Honorable Randal G.B. Valenciano presided.
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A. The Lower Court Erred In Ruling, Without Substantial
Evidence, That A Sale On Oahu Satisfied RLP's Duty To
Use Diligent Efforts To Obtain The Best Price, and
That There Was Adequate Publicity and Opportunity for
Inspection By Bidders
B. There Was No Substantial Evidence to Support a Finding
That The Auction Sale Price to RLP Was "Adequate"
C. The Lower Court Prejudicially Erred In Admitting The
Affidavit of Foreclosure. . ., the Motion for Summary
Judgment. . ., and the County Tax Assessment
Webpage. . . .
D. There Was No Substantial Evidence and No Evidence At
All To Support the Finding That The Notice of Default
and Acceleration Was Delivered To or Received By
Matsuyoshi At Least 30 days before the Stated Deadline
to Cure
E. The Lower Court Prejudicially Erred In Refusing To
Take Judicial Notice That the Honolulu Star-Bulletin
Ceased To Be Circulated on Kauai in 2004, and There
Was In Any Event No Substantial Evidence and No
Evidence At All To Support the Finding That the
Honolulu Star-Bulletin Was a Newspaper "Having A
General Circulation In The County In Which The
Mortgaged Property Lies"
F. The Lower Court Reversibly Erred In Awarding Fees and
Costs
G. The Lower Court Erred In Entering Judgment Against
Matsuyoshi on Her Counterclaim for Quiet Title
As relevant to the current motion, Matsuyoshi further
argues in part on appeal, with respect to argument D above, the
following:
Under Paragraph 22 of the Mortgage, RLP could not
foreclose unless it had given Matsuyoshi 30 days' notice to
cure. The record shows that RLP failed to do this, since it
sent the notice by "certified mail, return receipt
requested" from Kansas on May 20, 2008 giving only until
June 20 to cure. Because it was not sent by "first class
mail," RLP and Kondaur receive no "deeming" of delivery on
the mailing date under Paragraph 15 of the Mortgage and must
prove actual delivery. The Affidavit of Foreclosure does
not prove any delivery and no witness testified to any.
Indeed, the only reasonable inference from the evidence is
that the notice was not received on Kauai by May 21, a day
after it was mailed from Kansas, given that a court can take
judicial notice that mail from the Mid-West to a Hawaii
neighbor island takes more than one day to arrive.
I refer to this argument below as the "mail delivery issue."
After the conclusion of briefing, this appeal was
assigned randomly to the current three-judge merit panel pursuant
to notice filed on November 9, 2020. On December 21, 2020,
Matsuyoshi filed the present motion for recusal or
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disqualification. On December 28, 2020, Kondaur filed its
opposition to the motion.
B. My Prior Representation of Mortgagees
Before entering government service in January 2017, I
was employed as "of counsel" by the law firm Alston Hunt Floyd &
Ing (AHFI), where I practiced law for more than ten years.7/ My
practice focused primarily on commercial litigation and appellate
law, but I also took on pro bono civil rights cases for
individual clients. Several of the firm's partners had expertise
in real estate litigation, including in representing mortgagees
and other parties in judicial and nonjudicial foreclosure
actions. Starting in about 2013, I began working with my then-
colleagues on some of these cases on behalf of the firm's
clients, including Wells Fargo Bank, N.A. (Wells Fargo). My
employment with AHFI and my representation of its clients,
including its mortgagee clients, ended in December 2016.
I have never represented any party in the appeal now
before this court at any stage of the litigation, and I have no
personal knowledge of any of the evidentiary facts in this case.
C. Bald and the Bald Appeal
While employed with AHFI, one of the cases I worked on,
starting in 2013, was Bald, and starting in 2014, the Bald
appeal. The United States Court of Appeals for the Ninth Circuit
described Bald as follows:
In this putative class action, 8/ David Emory Bald and
Emily Lelis (collectively, Plaintiffs) contend that
defendant Wells Fargo . . . violated [HRS] § 480-2 in
connection with the nonjudicial foreclosure sales of
Plaintiffs' homes. HRS § 480-2(a) prohibits "unfair
or deceptive acts or practices in the conduct of any
trade or commerce," including acts that violate common
law duties. Plaintiffs allege that Wells Fargo
violated its common law duty to exercise its power of
sale in a manner that does not unreasonably damage the
debtor by (1) advertising in its notice of sale that
only a quitclaim deed would be provided to the winning
7/
Prior to joining AHFI, I practiced law for more than twenty years
in California.
8/
Bald is a putative class action, but no class has been certified
to date.
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bidder, despite the fact that it sometimes provided a
limited warranty deed; and (2) not publishing notices
of postponement of foreclosure auctions.
The [federal] district court granted Wells Fargo's
motion to dismiss, holding that the Hawaii foreclosure
statute did not prescribe the form of deed to be
offered and allowed postponement via oral
announcement, and that the Hawaii common law duty of a
mortgagee to not unnecessarily injure the debtor did
not apply.
Bald appeal, 2017 WL 1433314, at *1 (footnote added; citation
omitted).
On April 24, 2017, four months after I ceased
representing Wells Fargo and following the Hawai#i Supreme
Court's decision in Hungate v. Law Office of David B. Rosen, 139
Hawai#i 394, 391 P.3d 1, 17 (2017), the Ninth Circuit reversed
the federal district court's decision granting Wells Fargo's
motion to dismiss and remanded the case to the district court for
further proceedings. Bald appeal, 2017 WL 1433314, at *3.
On June 7, 2017, Matsuyoshi's current counsel in this
case, James J. Bickerton (Counsel Bickerton), first appeared as
counsel for the plaintiffs in Bald.9/ On November 27, 2017, the
plaintiffs in Bald filed their First Amended Complaint.
On July 2, 2018, the law firm Dentons announced its
combination with AHFI. At least in name, AHFI ceased to exist.
On January 17, 2019, my former colleagues at AHFI, now partners
at Dentons, withdrew as counsel, and new counsel appeared, for
Wells Fargo.
On May 16, 2019, the federal district court issued an
"Order Certifying A Question To The Hawai#i Supreme Court" in
Bald and two other pending cases raising similar issues. Lima v.
Deutsche Bank Nat'l Trust Co., Civ. Nos. 12-00509 SOM-WRP, 12-
00514 SOM-WRP, and 13-00135 SOM-RT, 2019 WL 2146585 (D. Haw.
May 16, 2019). The question was:
When (a) a borrower has indisputably defaulted on a mortgage
for real property, (b) a lender has conducted a nonjudicial
foreclosure sale but has not strictly complied with the
requirements governing such sales, and (c) the borrower sues
the lender over that noncompliance after the foreclosure
sale and, if the property was purchased at foreclosure by
the lender, after any subsequent sale to a third-party
9/
Counsel Bickerton first appeared as counsel for the plaintiffs-
appellants in the Bald appeal on September 1, 2015.
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purchaser, may the borrower establish the requisite harm for
liability purposes under the law of wrongful foreclosure
and/or section 480-2 of Hawai#i Revised Statutes by
demonstrating the loss of title, possession, and/or
investments in the property without regard to the effect of
the mortgage on those items?
Id. at *1.
The district court explained the procedural
developments following remand from the Ninth Circuit, in relevant
part, as follows:
The amended complaints . . . added new plaintiffs, and added
other practices that Defendant Banks had allegedly
wrongfully engaged in during the nonjudicial foreclosure
proceedings. . . . .
In their amended complaints, Plaintiff Borrowers now assert:
(1) a tort claim for wrongful foreclosure, and (2) a UDAP
claim under section 480-2.
. . . .
Defendant Banks in each case filed motions for summary
judgment, arguing, among other things, that Plaintiff
Borrowers' claims fail because they cannot prove the harm
element of either their wrongful foreclosure claim or their
section 480-2 claim. . . .
Plaintiff Borrowers respond that evidence that each
Plaintiff Borrower lost title, possession, and the value of
investments in that Plaintiff Borrower's property is
sufficient to survive summary judgment. Plaintiff Borrowers
argue that they were harmed by the loss of title and
possession of the properties that they had before Defendant
Banks foreclosed. . . .
Id. at *4-*5 (citations and footnotes omitted).
The district court further explained:
If the Hawai#i Supreme Court concludes that the effect of a
mortgage must be considered in determining whether a
borrower establishes the harm element of a prima facie
liability case for wrongful foreclosure or a section 480-2
claim, this court anticipates granting summary judgment for
Defendant Banks because Plaintiff Borrowers' only evidence
of harm relates to the loss of title, possession, and
investments in the properties without regard to any
mortgage. A grant of summary judgment on these grounds would
dispose of all claims.
If the Hawai#i Supreme Court arrives at a different
conclusion, that ruling will not dispose of the cases.
Instead, this court will need to address the remaining
arguments in Defendant Banks' motions for summary judgment,
as well as the issues in motions to dismiss filed by
Deutsche Bank and U.S. Bank. Wells Fargo has also filed a
separate motion for partial summary judgment. These motions
are substantial and together raise dozens of complicated and
often related issues. . . . .
Id. at *6 (citations omitted).
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The district court ordered, among other things:
"Further proceedings in this court are stayed pending action by
the Hawai#i Supreme Court." Id. at *14
On June 13, 2019, the Hawai#i Supreme Court ordered,
among other things, that the parties file briefs in the
certified-question proceeding. See Lima v. Deutsche Bank Nat'l
Trust Co., No. SCCQ-XX-XXXXXXX, Judiciary Information Management
System (JIMS) dkt. 12. The parties did so, and the matter is
currently pending before the supreme court.
II. Discussion
A. Legal Framework
We honor a foundational principle of our judicial
system: "The integrity of the judicial process depends on
'justice ... satisfy[ing] the appearance of justice.'" Ross, 89
Hawai#i at 381, 974 P.2d at 21 (quoting State v. Brown, 70 Haw.
459, 467, 776 P.2d 1182, 1188 (1989)); see Mauna Kea Anaina Hou
v. Bd. of Land & Nat. Res., 136 Hawai#i 376, 389, 363 P.3d 224,
237 (2015) ("[J]ustice can perform its high function in the best
way only if it satisfies the appearance of justice." (quoting
Sifagaloa v. Bd. of Trs. of Emps. Ret. Sys., 74 Haw. 181, 189,
840 P.2d 367, 371 (1992))). "Our judicial system, however, also
rests on the premise that 'the law will not suppose a possibility
of bias or favour in a judge, who is already sworn to administer
impartial justice, and whose authority greatly depends upon that
presumption and idea.'" Ross, 89 Hawai#i at 381, 974 P.2d at 21
(quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986)
(quoting 3 W. Blackstone, Commentaries 361)). "While the
principle that 'justice must satisfy the appearance of justice'
exhorts judges to 'hold the balance nice, clear and true,' it
does not invite any party concerned about or dissatisfied with
the outcome of a case to seek a different judge." Id. at 381,
974 P.2d at 21 (quoting Aetna Life Ins. Co., 475 U.S. at 822);
TSA Int'l Ltd., 92 Hawai#i at 255, 990 P.2d at 725 (quoting
Ross); see also Belue v. Leventhal, 640 F.3d 567, 574 (4th Cir.
2011) ("[R]ecusal decisions 'reflect not only the need to secure
public confidence through proceedings that appear impartial, but
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also the need to prevent parties from too easily obtaining the
disqualification of a judge, thereby potentially manipulating the
system for strategic reasons, perhaps to obtain a judge more to
their liking.'"(quoting In re United States, 441 F.3d 44, 67 (1st
Cir. 2006))).
Accordingly, the Hawai#i Supreme Court has made clear
that
a judge owes a duty not to withdraw from a case — however-
much his personal feelings may incline him to do so — where
the circumstances do not fairly give rise to an appearance
of impropriety and do not reasonably cast suspicion on his
[or her] impartiality.
Ross, 89 Hawai#i at 377, 974 P.2d at 17 (first emphasis added)
(quoting Brown, 70 Haw. at 467 n.3, 776 P.2d at 1188 n.3); TSA
Int'l Ltd., 92 Hawai#i at 254, 990 P.2d at 724) (quoting Ross).
See HRCJC Rule 2.7 ("A judge shall hear and decide matters
assigned to the judge, except when disqualification or recusal is
required or permitted by Rule 2.11 or other law.") (asterisk
omitted); id. Comment 1 ("Unwarranted disqualification or recusal
may bring public disfavor to the court and to the judge
personally.").
The court evaluating a claim of judicial bias thus
starts with the premise that judges are presumed to be unbiased.
See Ross, 89 Hawai#i at 381, 974 P.2d at 21; see also In re
Conservation District Use Application HA-3568, 143 Hawai#i 379,
392, 431 P.3d 752, 765 (2018) ("[A]dministrative adjudicators are
held to the same standard as judges . . . [and] like judges,
administrators serving as adjudicators are presumed to be
unbiased.") (citing Sifagaloa, 74 Haw. at 192, 840 P.2d at 372).
This presumption can be rebutted by a showing of a disqualifying
interest, "[b]ut the burden of establishing a disqualifying
interest rests on the party making the assertion." Sifagaloa, 74
Haw. at 192, 840 P.2d at 372.10/
10/
Similarly, the moving party bears the burden of establishing the
grounds for recusal under parallel federal law. See Am. Prairie Constr. Co.
v. Hoich, 594 F.3d 1015, 1021 (8th Cir. 2010) (affirming denial of recusal
under 28 U.S.C. § 455(a) and (b)(1); stating that "[a] judge is presumed to be
impartial, and the party seeking disqualification bears the substantial burden
of proving otherwise") (internal quotation marks omitted); see also Philip
Morris USA, Inc. v. United States Food & Drug Admin., 156 F. Supp. 3d 36, 43
(D.D.C. 2016) (stating that "[t]he moving party bears the burden of
(continued...)
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The supreme court also has recognized that "[d]ecisions
on recusal or disqualification present perhaps the ultimate test
of judicial discretion . . . ." TSA Int'l Ltd., 92 Hawai#i at
252, 990 P.2d at 722. Accordingly:
The jurist requested to recuse himself [or herself] is the
most capable to determine those factors hidden in the
recesses of the mind and soul which would bear upon his or
her capability to maintain the impartiality that each matter
must receive[.]
Id. (quoting Ross, 89 Hawai#i at 375, 974 P.2d at 15 (quoting
Goodheart v. Casey, 565 A.2d 757, 763 (Pa. 1989))) (original
brackets omitted).
While I am confident that I can maintain my
impartiality in this appeal, the court applies an objective
standard to questions of recusal and disqualification (see
infra), and I thus do so in the analysis below.
Hawai#i courts apply a two-part analysis in
disqualification or recusal cases. See Ross, 89 Hawai#i at 377,
974 P.2d at 17. This court has elaborated as follows:
First, courts determine whether the alleged bias is covered
by HRS § 601–7, 11/ which only pertains to cases of affinity
10/
(...continued)
establishing the grounds for recusal under [28 U.S.C. § ]455(b)(2)."); E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 847 F. Supp. 2d 843, 857 (E.D.
Va. 2012) (stating that it is the burden of "the party moving for recusal
under § 455(b)[] to demonstrate that the presiding judge or one of his former
law partners 'served in the matter in controversy.'").
11/
HRS § 601–7 (2016) provides:
(a) No person shall sit as a judge in any case in
which:
(1) The judge's relative by affinity or
consanguinity within the third degree is
counsel, or interested either as a plaintiff or
defendant, or in the issue of which the judge
has, either directly or through such relative, a
more than de minimis pecuniary interest; or
(2) The judge has been of counsel or on an appeal
from any decision or judgment rendered by the
judge;
provided that no interests held by mutual or common funds,
the investment or divestment of which are not subject to the
direction of the judge, shall be considered pecuniary
interests for purposes of this section; and after full
disclosure on the record, parties may waive disqualification
due to any pecuniary interest.
(continued...)
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or consanguinity, financial interest, prior participation,
and actual judicial bias or prejudice. [Ross, 89 Hawai #i at
377, 974 P.2d at 17]; [HRS] § 601–7. This first step refers
to judicial "disqualification." See [HRCJC] Rule 2.11 Code
Comparison (2008) (in Hawai#i jurisprudence, the terms
"disqualification" and "recusal" are not synonymous); Report
and Recommendation of the Committee to Evaluate Hawaii's
Revised Code of Judicial Conduct 1, 7 (April 10, 2008) . . .
("disqualification" refers to "disqualification pursuant to
HRS § 601–7 due to kinship, pecuniary interest, prior
involvement, personal bias or prejudice").
Second, if HRS § 601–7 does not apply, courts "may
then turn, if appropriate, to the notions of due process
. . . in conducting the broader inquiry of whether
'circumstances . . . fairly give rise to an appearance of
impropriety and . . . reasonably cast suspicion on [the
judge's] impartiality.'" Ross, 89 Hawai#i at 377, 974 P.2d
at 17 (brackets and ellipses in original) (quoting State v.
Brown, 70 Haw. 459, 467 n.3, 776 P.2d 1182, 1188 n.3
(1989)). A judge who ceases participating because of
due-process concerns "recuses" him or herself. 2008 RCJC
Report at 7 (under Ross, "recusal" refers to
"disqualification outside HRS § 601–7 due to the appearance
of impropriety").
Chen v. Hoeflinger, 127 Hawai#i 346, 361, 279 P.3d 11, 26 (2012)
(footnote added).
With these principles in mind, I address Matsuyoshi's
arguments in turn.
B. Disqualification Under HRS § 601-7
"To disqualify a judge based on HRS § 601–7(b), the
movant must timely file an affidavit 'stat[ing] the facts and
reasons for the belief that bias or prejudice exists.'" TSA
Int'l Ltd., 92 Hawai#i at 254, 990 P.2d at 724.
11/
(...continued)
(b) Whenever a party to any suit, action, or
proceeding, civil or criminal, makes and files an affidavit
that the judge before whom the action or proceeding is to be
tried or heard has a personal bias or prejudice either
against the party or in favor of any opposite party to the
suit, the judge shall be disqualified from proceeding
therein. Every such affidavit shall state the facts and the
reasons for the belief that bias or prejudice exists and
shall be filed before the trial or hearing of the action or
proceeding, or good cause shall be shown for the failure to
file it within such time. No party shall be entitled in any
case to file more than one affidavit; and no affidavit shall
be filed unless accompanied by a certificate of counsel of
record that the affidavit is made in good faith. Any judge
may disqualify oneself by filing with the clerk of the court
of which the judge is a judge a certificate that the judge
deems oneself unable for any reason to preside with absolute
impartiality in the pending suit or action.
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Here, Matsuyoshi cites HRS § 601–7(b) in the first
sentence of her motion, but never refers to the statute again in
her motion or supporting memorandum, and does not argue a
statutory ground for disqualification. The argument is thus
deemed waived. See HRAP Rule 28(b)(7) ("Points not argued may be
deemed waived."). Moreover, Matsuyoshi did not file an affidavit
supporting her motion, as required by HRS § 601–7(b). See TSA
Int'l Ltd., 92 Hawai#i at 254, 990 P.2d at 724. Accordingly,
Matsuyoshi has not established a statutory basis for
disqualification under HRS § 601–7(b).
C. Recusal Under HRCJC Rule 2.11(a)
As relevant to Matsuyoshi's recusal motion, HRCJC Rule
2.11(a) states:
Subject to the rule of necessity, a judge shall
disqualify or recuse himself or herself in any proceeding in
which the judge's impartiality might reasonably be
questioned, including but not limited to the following
circumstances:
. . . .
(6) The judge:
(A) served as a lawyer in the matter in
controversy . . . ;
. . . .
(C) was a witness concerning the matter[.]
(Asterisks omitted.)
This court applies an objective standard to the
question of whether a judge's impartiality might reasonably be
questioned under the circumstances of a particular case. See
Ross, 89 Hawai#i at 380, 974 P.2d at 20. That standard requires
the court to ask the following:
Would a reasonable person, knowing all the facts, conclude
that the . . . judge's impartiality could reasonably be
questioned? Or phrased differently, would an objective,
disinterested observer fully informed of the underlying
facts, entertain significant doubt that justice would be
done absent recusal?
Id. (quoting United States v. Lovaglia, 954 F.2d 811, 815 (2d
Cir. 1992)). Importantly, a reasonable observer must assume that
judges are ordinarily capable of setting aside their own
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interests and adhering to their sworn commitments "to administer
impartial justice," Ross, 89 Hawai#i at 381, 974 P.2d at 21, and
to "faithfully discharge [their] duties . . . to the best of
[their] abilit[ies]," Haw. Const. art. XVI, § 4. See Armenian
Assembly of America, Inc. v. Cafesjian, 783 F. Supp. 2d 78, 91
(D.D.C. 2011) (construing parallel federal law).
Matsuyoshi contends that my recusal is required: (1)
under HRCJC Rule 2.11(a), because my impartiality might
reasonably be questioned "given [my] recent practice history";
(2) under HRCJC Rule 2.11(a)(6)(A), because I "served as a lawyer
in the matter in controversy" by virtue of my prior
representation of mortgagees in other cases; and (3) under Rule
2.11(a)(6)(C), because I became "a witness concerning the matter
[in controversy,]" by filing a declaration in the Bald appeal
seven years ago.
I examine each of these contentions in turn below.
1. Recusal Under HRCJC Rule 2.11(a) Based on Prior
Representation of Mortgagees
Matsuyoshi first argues that my impartiality might
reasonably be questioned because of my "recent practice history"
– which she acknowledges is over four years old – representing
mortgagees in other nonjudicial foreclosure litigation. She
cites no Hawai#i case law supporting her position, and this court
has found none. Indeed, Matsuyoshi cites no authority at all in
which a judge recused him or herself based merely on having
previously litigated the same or similar issues coming before the
court, or on having represented parties taking positions adverse
to the party seeking recusal.
Federal authorities, interpreting a federal statute
that contains terms similar in many (though not all) respects to
the HRCJC, and that mandates recusal where a judge's impartiality
"might reasonably be questioned," see 28 U.S.C. § 455 (1990),12/
12/
28 U.S.C. § 455(a)-(b) provides:
(a) Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.
(continued...)
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do not support Matsuyoshi's argument. "Courts have uniformly
rejected the notion that a judge's previous advocacy for a legal,
constitutional, or policy position is a bar to adjudicating a
case, even when that position is directly implicated in the case
before the court." Carter v. West Publishing Company, No. 99-
11959-EE, 1999 WL 994997, at *9 (11th Cir. Nov. 1, 1999)
(Tjoflat, J.) (citing numerous cases). See also Royal Park Invs.
SA/NV v. U.S. Bank Nat'l Ass'n, No. 14 Civ. 2590 (VM)(RWL), 2018
WL 559158, at *3 (S.D.N.Y. Jan. 9, 2018) (denying recusal where
judge had prior experience litigating residential mortgage backed
security (RMBS) cases); Pauley v. United States, No. 3:12-CV-
12/
(...continued)
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in
the matter in controversy, or a lawyer with whom he
previously practiced law served during such
association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and
in such capacity, participated as counsel, adviser or
material witness concerning the proceeding or
expressed an opinion concerning the merits of the
particular case in controversy;
(4) He knows that he, individually or as a fiduciary,
or his spouse or minor child residing in his
household, has a financial interest in the subject
matter in controversy or in a party to the proceeding,
or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third
degree of relationship to either of them, or the
spouse of such a person:
(i) is a party to the proceeding, or an officer,
director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest
that could be substantially affected by the
outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a
material witness in the proceeding.
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08558, 2013 WL 6190034, at *3 (S.D.W. Va. Nov. 26, 2013) (denying
recusal where judge had prior experience working with physicians
and hospitals defending medical negligence matters); Fifty-Six
Hope Road Music Ltd. v. UMG Recordings, Inc., No. 08 Civ. 6143
(KBF), 2011 WL 5825321, at *2 (S.D.N.Y. Nov. 16, 2011) (denying
recusal where judge had prior experience litigating digital music
issues); Biro v. Condé Nast, No. 11 CV 4442 (JPO), 2011 WL
5109445, at *2 (S.D.N.Y. Oct. 27, 2011) (denying recusal where
judge had experience litigating defamation cases on behalf of
large media companies); Greater New York Mut. Ins. Co. v. North
River Ins. Co., Civ. A. Nos. 94-5223, 94-5554, 1995 WL 214410, at
*1 (E.D. Pa. Apr. 10, 1995) (denying recusal where judge had
prior experience litigating insurance issues).
In Royal Park Investments, for example, the court
denied a request for recusal brought under 28 U.S.C. § 455(a).
2018 WL 559158, at *3. There, the defendant bank argued that the
judge's "impartiality might reasonably be questioned" in part
because, from 2000 to 2016, while in private practice, the judge
had litigated RMBS cases on behalf of plaintiffs advocating
positions on issues that were likely to arise in the case before
the court. Id. at *1-2. After considering the relevant
authorities, the court concluded: "The fact that I have
litigated RMBS cases on behalf of plaintiffs addressing the same
or similar issues that are likely to arise in this case also
provides no basis for recusal." Id. at *3. "Were it otherwise,"
the court reasoned, "no Assistant United States Attorney who
prosecuted narcotics criminals could become a judge presiding
over criminal narcotics cases, and no personal injury lawyer
could become a judge presiding over tort cases." Id. The court
continued: "There is no basis to believe my 'impartiality might
reasonably be questioned' simply because I am knowledgeable about
certain aspects of the [RMBS] industry or [RMBS, sampling and
other] issues more generally." Id. (alteration in original)
(quoting Fifty-Six Hope Road Music, 2011 WL 5825321, at *2).
In reaching this conclusion, the court relied in part
on Cipollone v. Ligget Group, Inc., 802 F.2d 658, 659-60 (3d.
Cir. 1986). See Royal Park Invs., 2018 WL 559158, at *3. In
Cipollone, the Third Circuit rejected the argument that a judge's
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impartiality might reasonably be questioned in a products
liability action because of his knowledge of the issues, gained
while in private practice. The court stated:
[P]rior knowledge about legal issues is not a ground for
recusal of a Judge. . . . [The moving party] does not
assert that Judge Hunter has knowledge of evidentiary facts.
If judges could be disqualified because their background in
the practice of law gave them knowledge of the legal issues
which might be presented in cases coming before them, then
only the least-informed and worst-prepared lawyers could be
appointed to the bench.
802 F.2d at 659-60. See Greater New York Mut. Ins. Co., 1995 WL
214410, at *3 ("My only prior experience is with the legal issues
presented by these cases. . . . [T]his is simply not a basis for
recusal. Otherwise, the more legal knowledge or experience a
judge has, the fewer cases he or she could hear.")
These authorities make clear that my previous advocacy
on behalf of mortgagees in other nonjudicial foreclosure
litigation is not a proper basis for my recusal. That is so
regardless of any alleged similarity between the issues I
litigated while in private practice and the issues raised in this
appeal (see cases cited supra), though as further discussed
below, Matsuyoshi has not established more than an attenuated
connection between the former and the latter issues. I have no
personal knowledge of any evidentiary facts in this case.
Accordingly, my prior "practice history" does not provide an
objective basis to believe that my impartiality might reasonably
be questioned.
Lacking authority for her position, Matsuyoshi relies
on the rhetoric of armed conflict. She describes "a broad scale
campaign in a multi-front 'war' between classes of consumers and
multiple banks that spanned several years," and asserts that I
"was not just a foot-soldier in that war[, . . . but] a
commanding general[.]" Ultimately, though, Matsuyoshi's argument
comes down to this assertion: "The record shows strong and
vigorous advocacy, and firm disagreements with the positions of
the mortgagors" in cases I litigated.
Assuming that is so, Matsuyoshi still has not explained
why a judge who previously represented clients in other matters
while in private practice must be disqualified simply because, as
an advocate, he fulfilled his professional responsibilities to
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zealously represent those clients. See Hungate, 139 Hawai#i at
413, 391 P.3d at 20 ("Attorneys bear a duty to zealously
represent clients 'within the bounds of the law." (quoting
Giuliani v. Chuck, 1 Haw. App. 379, 384, 620 P.2d 733, 737
(1980))); Hawai#i Rules of Professional Conduct, "Preamble," ¶ 2
("As advocate, a lawyer zealously asserts the client's position
under the Rules of the adversary system."), ¶ 8, ¶ 9. Nor has
Matsuyoshi supplied any authority requiring recusal based on the
strength and vigor of a current judge's prior advocacy as a
litigator. Cf. Greater New York Mut. Ins. Co., 1995 WL 214410,
at *3 (denying recusal where the movant argued that the judge, in
his prior experience, was "instrumental in the development of a
novel legal theory" upon which he subsequently based a judicial
decision). Matsuyoshi's argument also wrongly conflates the
lawyer's professional role with his or her personal beliefs. See
Philip Morris USA Inc., 156 F. Supp. 3d at 49 ("Reasonable, well-
informed observers . . . understand that lawyers personally, and
law firms as institutions, do not necessarily agree or identify
with their clients' actions or interests. After all, lawyers and
law firms advocate for clients, even when their clients'
interests conflict with their own personal beliefs. That is the
hallmark of lawyering.")
In sum, my prior representation of mortgagees is more
than four years old. While in private practice, I zealously
represented my clients, both plaintiffs and defendants, within
the bounds of the law. The case law demonstrates that this
circumstance is not disqualifying. On this record, Matsuyoshi
has failed to establish that a reasonable person, knowing all the
facts, would conclude that my impartiality in the current appeal
could reasonably be questioned due to my prior "practice
history."
2. Recusal Under HRCJC Rule 2.11(a)(6)(A)
Matsuyoshi next argues that my recusal is required
under HRCJC Rule 2.11(a)(6)(A), because I served as a lawyer in
"the matter in controversy" as a result of my prior
representation of mortgagees in other cases, including Bald.
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Whether this rule requires my recusal depends on whether the
legal services that I provided in these other cases concern "the
matter in controversy" that is now before this court.
a. Definition of "Matter in Controversy"
HRCJC Rule 2.11(a)(6)(A) states in part that "a judge
shall disqualify or recuse himself or herself in any proceeding
in which . . . [t]he judge . . . served as a lawyer in the matter
in controversy, or was associated with a lawyer who participated
substantially as a lawyer in the matter during such
association[.]" (Emphasis added.) The HRCJC does not expressly
define the phrase "matter in controversy" or what appears to be
the shorthand reference, "matter." HRCJC Rule 2.11 is based,
with modifications, on American Bar Association Model Code of
Judicial Conduct (ABA Model Code) Rule 2.11. See HRCJC Rule
2.11, "Code Comparison." However, the ABA Model Code does not
expressly define the terms at issue. Nor have the Hawai#i
appellate courts opined on the meaning of these terms.
Based on certain federal authorities that have
construed the phrase "matter in controversy" under 28 U.S.C.
§ 455(b), Matsuyoshi urges this court to adopt a broad reading of
the same phrase under Hawai#i law. Indeed, Matsuyoshi's sweeping
argument would effectively define "matter in controversy" to
encompass not only the case before the court, but also other
cases involving similar legal issues that a judge litigated while
in private practice, apparently limited only by the extent and
zeal of his or her prior advocacy on those issues. In advancing
this expansive definition, however, Matsuyoshi overlooks
important distinctions between HRCJC Rule 2.11 and 28 U.S.C.
§ 455(b) regarding the terms at issue.
For example, while the HRCJC does not define the phrase
"matter in controversy," it does, unlike parallel federal law,
define the terms "pending matter" and "impending matter." A
"'[p]ending matter' is a matter that has commenced. A matter
continues to be pending through any appellate process until final
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disposition. See [HRCJC] Rules 2.9, 2.10, 3.13, and 4.1."13/
HRCJC, "Terminology" (emphasis and underscoring added). As used
in the definition of "pending matter" and the cited rules, the
term "matter" appears to refer to a case (which will have a
"final disposition") before the court, not other cases involving
the same or similar issues. See, e.g., HRCJC Rule 2.9(a) ("A
judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the
judge outside the presence of the parties or their lawyers,
concerning a pending* or impending matter* . . . . (denoting
defined terms with asterisks)). Nevertheless, it is not clear
that this contextual definition of "matter" was intended to apply
to the terms "matter in controversy" and "matter" in HRCJC Rule
2.11, as the definition of "pending matter" does not reference
Rule 2.11, and the terms "matter in controversy" and "matter" in
Rule 2.11 are not followed by asterisks, which denote defined
terms in the HRCJC.14/
Focusing on HRCJC Rule 2.11, I note that, unlike 28
U.S.C. § 455(b), Rule 2.11 requires that a judge disqualify or
recuse himself or herself "in any proceeding in which . . . [t]he
judge . . . on appeal, previously presided as a judge over the
matter in another court." HRCJC Rule 2.11(a)(6)(D). In this
context, the term "matter" appears again to be shorthand for
"matter in controversy" and seems to refer to the case currently
pending before the appellate court, though it also may reasonably
be read to encompass any closely related underlying case (e.g.,
the original criminal case underlying a post-conviction
proceeding under Hawai#i Rules of Penal Procedure Rule 40). Cf.
People v. Storms, 617 N.E.2d 1188, 1190 (Ill. 1993) (ruling that
the plain meaning of "matter in controversy" in the Illinois Code
13/
The HRCJC also defines the term "impending matter." An
"'[i]mpending matter' is a matter that is imminent or expected to occur in the
near future. See [HRCJC] Rules 2.9, 2.10, 3.13, and 4.1." HRCJC,
"Terminology" (underscoring added).
14/
It is also possible that the terms "matter in controversy" and
"matter" in HRCJC Rule 2.11 are not followed by asterisks simply because they
do not include the terms "pending" and "impending," as do HRCJC Rules 2.9,
2.10, 3.13, and 4.1.
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of Judicial Conduct refers to "the case currently pending before
the court"); People v. Vasquez, 718 N.E.2d 356, 358-59 (Ill. App.
1999) (applying Storms and concluding that a post-conviction
proceeding is sufficiently related to the original prosecution
that it falls within the scope of the Illinois rule). Even if
one construes "matter in controversy" more broadly than the case
before the court, the phrase surely was not intended to encompass
all cases involving the same substantive subject or legal issues
that the judge presided over in another court. So, too, the same
phrase could not have been intended to encompass all cases
involving the same substantive subject or legal issues that the
judge litigated while in private practice.
Unlike 28 U.S.C. § 455(b), HRCJC Rule 2.11 also
includes comments that use the term "matter." "The Comments that
accompany the Rules . . . provide guidance regarding the purpose,
meaning, and proper application of the Rules." HRCJC, "Scope."
In explaining the rule of necessity, for example, Comment 3 to
Rule 2.11 states in part:
[A] judge . . . might be the only judge available in a
matter requiring immediate judicial action, such as a
hearing on probable cause or a temporary restraining order.
In matters that require immediate action, the judge must
disclose on the record the basis for possible
disqualification or recusal and make reasonable efforts to
transfer the matter to another judge as soon as practicable.
(Emphasis added.) Here, again, in context, the term "matter"
appears to refer to the case currently pending before the court,
not other cases involving the same or similar issues. See
Priceline.com, Inc. v. Dir. of Taxation, 144 Hawai#i 72, 90 n.33,
436 P.3d 1155, 1173 n.33 (2019) ("the meaning of words may be
determined by reference to their relationship with other
associated words and phrases").
Nevertheless, I acknowledge that the precise meaning of
the phrase "matter in controversy" in HRCJC Rule 2.11 is not
entirely clear. Thus, to the extent that federal courts have
construed the same or similar terms in 28 U.S.C. § 455, this
court may look to federal case law for guidance. See Ross, 89
Hawai#i at 380, 974 P.2d at 20 (noting the decisions of federal
courts "interpreting a federal statute [i.e., 28 U.S.C. § 455]
that contains terms similar to the [then-Code of Judicial Conduct
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(CJC)], mandating recusal where the judge's impartiality 'might
reasonably be questioned'"); State v. Lioen, 106 Hawai#i 123,
128-29, 102 P.3d 367, 372-73 (App. 2004) (reviewing the decisions
of "[f]ederal and state courts construing codes of judicial
conduct with language comparable to the Hawai#i CJC").
Federal cases that have interpreted the phrase "matter
in controversy," as used in 28 U.S.C. § 455(b), "present a
somewhat muddled picture." Philip Morris USA Inc., 156 F. Supp.
3d at 44. There is limited case law interpreting 28 U.S.C.
§ 455(b), and "courts that have interpreted this section have
widely divergent views with respect to its meaning and
application." Blue Cross & Blue Shield of Rhode Island v. Delta
Dental of Rhode Island, 248 F. Supp. 2d 39, 43 (D.R.I. 2003).
Some courts have read "matter in controversy" strictly to mean
only the actual case pending before the court. See id. at 46.
For example, the court in Blue Cross & Blue Shield, after
reviewing the relevant case law, concluded: "[Section] 455(b)(2)
should be given a restrictive reading; that is, it should be read
as applying only to the case that is before the Court as defined
by the docket number attached to that case and the pleadings
contained therein . . . ." Id.; see also United States v.
Scherer, No. 2:19-CV-03634, 2019 WL 5064686, at *1 (S.D. Ohio
Sept. 17, 2019) ("The term 'matter in controversy' refers 'to the
actual case that is pending before the Court.'" (quoting Jones v.
Philadelphia Parking Auth., No. 11-4699, 2011 WL 4901291, at *2
(E.D. Penn. Oct. 14, 2011))); Di Giustino v. SmarteCarte Co., No.
CV 16-00192 LEK-KSC, 2018 WL 1440214, at *4 (D. Haw. Mar. 22,
2018) ("More importantly, the undersigned [judge] never served as
a lawyer in this matter, nor has a lawyer with whom he previously
practiced law served during such association as a lawyer
concerning the matter.") (emphasis added and original emphasis
omitted); Pitrolo v. County of Buncombe, N.C., No. 06cv199, 2013
WL 588753, at *5 (W.D.N.C. Feb. 13, 2013) (citing approvingly the
definition of "matter in controversy" in Blue Cross & Blue
Shield).
Other courts have held that "matter in controversy" has
a broader, though not unbounded, meaning. See, e.g., Little Rock
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Sch. Dist. v. Armstrong, 359 F.3d 957, 960 (8th Cir. 2004)
(explaining that the phrase "matter in controversy" must mean
something other than the word "case"); Little Rock Sch. Dist. v.
Pulaski Cty. Special Sch. Dist. No. 1, 839 F.2d 1296, 1302 (8th
Cir. 1988) (explaining that under the view that "different cases
may constitute the same 'matter in controversy,' the question of
what kinds of cases are sufficiently related for the purposes of
§ 455(b)(2) would remain a question of judgment and degree");
Philip Morris USA Inc., 156 F. Supp. 3d at 43 (stating that "the
question of recusal under [§] 455(b)(2) is necessarily a fact-
intensive inquiry" and noting various factors courts have
considered in determining the "matter in controversy"); United
States v. Lawson, Crim. No. 3:08-21-DCR, 2009 WL 1702073, at *2
(E.D. Ky. June 17, 2009) ("While analysis under this statutory
section is fact-intensive, the phrase 'matter' as used in §
455(b)(2) is intended to have broader meaning than the specific
case pending for resolution.").
For example, in Armstrong, the Eighth Circuit
explained:
The language chosen by Congress, "matter in controversy," is
not defined by the statute. However, Congress easily could
have substituted the word "case" for the words "matter in
controversy," but did not do so. This deliberate choice by
Congress demonstrates an intent that the words "matter in
controversy" mean something other than what we commonly
refer to as a "case." In fact, Congress used the words
"proceeding," "case in controversy," and "subject matter in
controversy" in various other subsections of § 455(b) to
describe situations where a judge must disqualify himself.
Thus, we must assume that Congress ascribed a particular
meaning to the words "matter in controversy," and we must
try to discern that meaning. 15/
359 F.3d at 960 (footnote added). According to the court, in
determining whether two proceedings are the same "matter in
15/
It is noteworthy that, unlike 28 U.S.C. § 455(b), HRCJC Rule 2.11
does not use the phrase "case in controversy." Indeed, HRCJC Rule
2.11(a)(6)(B) substitutes "matter in controversy" for the federal statute's
"case in controversy." Compare HRCJC Rule 2.11(a)(6)(B) (a judge shall
disqualify himself or herself in any proceeding in which the judge "served in
governmental employment and in such capacity, participated personally and
substantially as a lawyer or public official concerning the proceeding, or has
publicly expressed in such capacity an opinion concerning the merits of the
particular matter in controversy") with 28 U.S.C. § 455(b)(3) (a judge shall
disqualify himself or herself "[w]here he [or she] has served in governmental
employment and in such capacity participated as counsel, adviser or material
witness concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy") (emphases added).
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controversy," "we look to the substance of the issues argued and
decided in the two proceedings." Id. Applying this standard,
the court concluded that a trial judge's prior representation of
another judge at a much earlier stage of the same case did not
constitute participation in the same "matter in controversy,"
where that representation was limited to the issue of the latter
judge's disqualification and did not go to the merits of the
case, the disqualification motion had been addressed under a
separate docket number, and the issues before the court on the
merits were not "sufficiently related" to the prior
representation. Id. at 960-61.
Other federal courts have used the same or similar
phrasing to express the relatedness (or lack thereof) between the
case in which recusal is sought and the judge's prior legal work
or associations. See, e.g., Hoffenberg v. United States, 333 F.
Supp. 2d 166, 174-76 (S.D.N.Y. 2004) (inquiring whether judge's
purported service as a lawyer in another matter and the case
pending before him were "significantly related"); In re Letters
Rogatory from Supreme Court of Ontario, 661 F. Supp. 1168, 1173
(E.D. Mich. 1987) (inquiring whether subpoena matter and former
law partner's representation were "sufficiently related");
Preston v. United States, 923 F.2d 731, 735 (9th Cir. 1991)
(asking "whether the relationship between the judge and an
interested party was such as to present a risk that the judge's
impartiality in the case at bar might reasonably be questioned by
the public"). For example, in United States v. DeTemple, 162
F.3d 279 (4th Cir. 1998), the court applied 28 U.S.C. § 455(b)(2)
by examining the nature and extent of the connection between the
judge's prior professional association and the case then before
him. Id. at 284. In identifying the matter in controversy, the
court looked at the degree of attenuation between the prior case
in which the judge's former partners were involved and the case
over which the judge was then presiding. Id. at 285. The court
explained that the fact "that two suits might have some facts in
common [is] not controlling on whether they qualify as the same
matter in controversy." Id. at 286 (citing Dixie Carriers, Inc.
v. Channel Fueling Serv. Inc., 669 F. Supp. 150, 152 (E.D. Tex.
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1987)). While acknowledging that there was some overlap in the
two cases at issue, the court held that "[the defendant] has
failed to show that the [matter involving the former partner]
concerned the case against him in more than a very tangential
way" and that "any connection between [the two cases] was too
attenuated to be considered the same matter in controversy." Id.at 285-86 (citing Pulaski Cty. Special Sch. Dist. No. 1, 839 F.2d
at 1302).
In addition to the court in DeTemple, a number of other
courts examining the relationship between a pending matter and
the judge's prior representation or association have concluded
that recusal was not required under Section 455(b)(2) where the
matters were not "sufficiently related" or the relationship was
"too attenuated." See, e.g., Armstrong, 359 F.3d at 960-61;
Philip Morris USA Inc., 156 F. Supp. 3d at 47 (concluding that
"my former law partner's representation of [an anti-tobacco
organization] is too attenuated a representation to be considered
part of the 'matter in controversy,'" while acknowledging there
was "substantial overlap between the subjects of the two
matters"); E.I. du Pont de Nemours & Co., 847 F. Supp. 2d at 857
(denying recusal where the plaintiff asserted that two of the
judge's former law partners represented DuPont in another case
while the judge was a partner and that evidence in the other case
might be relevant to the pending case).
Matsuyoshi relies on a handful of federal cases in
which recusal was granted or ordered under Section 455(b)(2),
including Preston, 923 F.2d at 734-35; In re Rodgers, 537 F.2d
1196, 1197-98 (4th Cir. 1976); and In re Letters Rogatory, 661 F.
Supp. at 1173. In those cases, however, a conflict had arisen
from the judge's prior law firm's representation of a client in a
matter that was the same or closely related to the case before
the court.
In Preston, for example, a decedent's heirs brought a
wrongful death action under the Federal Tort Claims Act against
the federal government. 923 F.2d at 732. The heirs contended
that the trial judge was required to recuse because his former
law firm represented an interested third party, Hughes Aircraft
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Company, the decedent's employer at the time of his death. Id.The Ninth Circuit held that recusal was required in part because,
"[a]lthough Hughes was never a party to the litigation before
[the trial judge], had judgment been rendered against the
government a potential claim for indemnification against Hughes
would have been triggered under a contract between Hughes and the
government." Id. at 731, 732. Further, the trial judge's former
law firm had represented Hughes both in a state court action
involving the decedent's death, while the judge was employed by
the firm, and in pre-trial discovery in the same federal case.
Id. at 734–35. The Ninth Circuit also focused on these close
connections in concluding that recusal was required. Id.In In re Rodgers, another case cited by Matsuyoshi, the
defendants were charged with using unlawful means to secure
passage of a bill in the Maryland state legislature. 537 F.2d at
1197-98. They moved for recusal of the trial judge based on the
fact that his former law partner had represented a client in its
own efforts to get the bill passed. Id. The evidence showed
that the former law partner and his client "will undoubtedly
testify about the events that took place before the judge
withdrew from his law firm." Id. at 1198. The Fourth Circuit
ordered the trial judge's recusal because the defendants intended
to "attempt to use the [judge's former law] partner and his
client as witnesses to prove that their goals [in obtaining
passage of the bill] were identical and legitimate." Id.Matsuyoshi also relies on In re Letters Rogatory.
There, the trial judge recused himself because his former law
partner's representation could have become an issue in the matter
before the court. 661 F. Supp. at 1174. The issue was whether
the judge could preside over a subpoena matter stemming from a
Canadian judicial proceeding against the former law partner's
client. Id. at 1172. The former law partner, who was subpoenaed
for testimony, had advised the client about loan transactions
that were the subject of the Canadian proceeding. Id. at 1170
n.5, 1172. The judge recused in part because, if the parties had
asked him to resolve an issue of attorney-client privilege, he
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would have had to examine the contents of documents prepared by
his former law partner. Id. at 1174.
Based on the text of HRCJC Rule 2.11, a contextual
reading of its various provisions (and comments) using the terms
"matter in controversy" and "matter," a review of relevant
federal cases construing parallel federal law, and recognizing
the distinctions between HRCJC Rule 2.11 and 28 U.S.C. § 455(b),
I conclude that the phrase "matter in controversy," as used in
Rule 2.11, should be construed as follows: The touchstone for
determining the "matter in controversy" is the case currently
pending before the court, i.e., the case in which recusal is
raised. The "matter in controversy" also encompasses matters so
closely related to the case at bar as to present an objective
basis to conclude that the judge's impartiality might reasonably
be questioned. Determining the relatedness of such matters
presents an issue of judgment and degree based on the
circumstances.
b. Prior Representation of Mortgagees in Other Cases
Applying this "matter-in-controversy" standard to the
circumstances here, I conclude that my prior representation of
mortgagees in other cases, including in Bald and the Bald appeal,
is too attenuated to be considered part of the "matter in
controversy" before this court for purposes of HRCJC Rule
2.11(a)(6)(A). In reaching this conclusion, I recognize that the
general subject matter of the pending case and these other
matters overlap, as they all concern alleged wrongdoing by
mortgagees in connection with their nonjudicial foreclosures of
real-property mortgages. But "[t]he fact that two suits or
issues have facts in common does not control whether they qualify
as the same matter in controversy." E.I. du Pont de Nemours &
Co., 847 F. Supp. 2d at 860; see DeTemple, 162 F.3d at 286(same). Were that the case, no lawyer with experience in cases
involving a particular subject matter, and a reputation for
zealously representing his or her clients, could serve as a judge
in unrelated cases involving the same or similar issues.
Likewise, no trial court judge presiding over cases involving the
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same subject matter could later serve as an appellate judge in
other cases raising the same or similar issues.
Matsuyoshi asserts that "there is a substantial
relationship" between the pending case and my prior
representation of mortgagees because, several years ago, I
allegedly "argued that the Bickerton firm was engaged in a multi-
case campaign to overturn and seek relief from nonjudicial
foreclosures under HRS Chapter 667 Part I," prior to learning in
2015 that this case "was part of that overall effort." Just to
be clear, Matsuyoshi does not assert that as an advocate in other
cases, I made a statement about the merits of the current appeal,
which was filed in 2019. Rather, she suggests a disqualifying
interest based on the fact that I eventually came to learn of the
existence of the supreme court's 2015 published opinion in the
earlier appeal in this case. See Kondaur, 136 Hawai#i 227, 361
P.3d 454. This cannot be the applicable standard for recusal, as
it would undermine the ability of former lawyers to serve as
judges in any case that involves their former practice area (or
even their legal interests). In addition, Matsuyoshi offers no
source for the purported statement she attributes to me.
What Matsuyoshi does cite and quote verbatim are
several paragraphs in the answering brief that I filed in the
Bald appeal, a year and a half before Counsel Bickerton appeared
as counsel for the plaintiffs-appellants in that appeal.16/ Those
paragraphs identify several other federal and state cases raising
issues related to the issues raised in the Bald appeal. In fact,
Ninth Circuit Rule 28-2.6 requires that each party identify in a
statement accompanying its initial brief any known related case,
which includes any case "rais[ing] the same or closely related
issues[,]" pending in the Ninth Circuit. The Hawai#i Rules of
Appellate Procedure include a similar rule. See HRAP Rule
28(b)(11). Explaining the nature of related cases in a party's
brief, and noting their common counsel, cannot reasonably be
construed as transforming all of the cases into a single "matter
16/
The answering brief in the Bald appeal was filed on February 18,
2014. Counsel Bickerton appeared as counsel for the plaintiffs-appellants in
the Bald appeal on September 1, 2015, and for the plaintiffs in the federal
district court Bald action on June 7, 2017.
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in controversy." Regardless, the present case was not identified
as a related case in the Bald appeal by any of the parties.17/
Matsuyoshi also argues that "[a] decision herein on the
question of whether certified mail is deemed delivered upon
mailing will directly impact and call into question a large
number of foreclosures conducted by Judge Wadsworth's former
client, Wells Fargo Bank, N.A., which used the certified mail
method extensively, including foreclosures that remain at issue
in [Bald], a case in which Judge Wadsworth formerly acted as
counsel for the mortgagee bank." To clarify, Matsuyoshi is not
arguing that while representing Wells Fargo in Bald, I litigated
the mail delivery issue now before this court in the current
appeal. The mail delivery issue that Matsuyoshi now identifies
as an issue in Bald was not litigated in that case during the
period that I represented Wells Fargo. Rather, Matsuyoshi
appears to argue that a mail delivery issue was first raised in
Bald via the First Amended Complaint, which was filed on November
27, 2017, again, nearly a year after my representation of Wells
Fargo ended. Specifically, Matsuyoshi points to Paragraph 17 of
the First Amended Complaint, which alleges:
17. WELLS FARGO further breached its duties in a
substantial number of such cases by foreclosing after
performing one or more of the following unlawful or wrongful
acts:
a. Sending the borrower a notice of acceleration
that failed to give the notice that the standard form
mortgage required about the unconditional right the borrower
had to bring a separate suit to stop the sale[.]
While this paragraph does not appear on its face to raise a mail
delivery issue, Matsuyoshi also submits copies of several
"Foreclosure Affidavits . . . of members of the putative class in
Bald . . . reflect[ing] that the 'notice of default' was sent by
Wells Fargo to the class member by 'certified mail, return
receipt requested.'" These foreclosure affidavits of other
17/
It is also noteworthy that in Hungate, which Matsuyoshi now
appears to contend is also part of the same "matter in controversy" as the
pending appeal, Plaintiff-Appellant Hungate filed a Statement of Related Cases
identifying 17 cases purportedly "related to" Hungate. See Plaintiff-
Appellant Russell L. Hungate's Opening Brf. at 46-47, Hungate v. Law Office of
David B. Rosen, No. CAAP-XX-XXXXXXX (Haw. App. Sept. 12, 2014), JIMS dkt. 37.
That Statement of Related Cases did not include the case giving rise to the
appeal before this court. Id.31
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mortgagors are not part of the record in this appeal.
Nonetheless, I acknowledge the apparent intention of counsel for
Matsuyoshi to litigate a mail delivery issue in Bald when the
current stay is lifted.
At present, it appears that the Hawai#i Supreme Court
is considering the certified question of state law submitted by
the federal district court in Bald. See supra. Further
proceedings in the district court are stayed pending action by
the supreme court. Lima, 2019 WL 2146585, at *14. It also
appears that the court in Bald submitted the certified question
in connection with summary judgment motions filed by the
mortgagee defendants. Id. at *5-*6. Given the current
procedural posture of Bald, one can only speculate as to whether
a decision in this appeal regarding the mail delivery issue will
have any affect on the plaintiffs' claims in Bald.18/ Matsuyoshi
simply has not established a sufficient relationship between the
pending appeal and Bald based on the potential overlap of this
one issue. And even if the overlap were definite, it would not
control whether these two cases qualify as the same matter in
controversy. See DeTemple, 162 F.3d at 286 ("that two suits
might have some facts in common [is] not controlling on whether
they qualify as [the] same matter in controversy" (citing Dixie
Carriers, Inc., 669 F. Supp. at 152)).
As to my prior representation of Wells Fargo and other
mortgagees in other cases while in private practice, I have not
represented these former clients for more than four years. In
addition, my former AHFI colleagues withdrew as counsel for Wells
Fargo in Bald on January 7, 2019, over two years ago, just months
after AHFI combined with Dentons. Matsuyoshi thus has not
established any circumstances like those at issue In re Rodgers
and In re Letters Rogatory.
Preston is also inapposite. There, an indemnity
agreement existed between the judge's former law firm's client
(Hughes) and the federal government, which was a party to the
18/
Matsuyoshi does not argue that the court's decision in this appeal
will have preclusive (i.e., collateral estoppel) effect on the plaintiffs'
claims in Bald.
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case pending before the judge, such that a judgment against the
government could lead to an indemnity claim against the law
firm's client. Here, by contrast, Matsuyoshi has not shown that
the outcome of this case will trigger a similar legal obligation
or have any direct pecuniary impact on any former mortgagee
client. And even if the mortgagee's legal position in the
current appeal were shown to mirror that of a former client
(which has not been shown), their common positional interest
would be too attenuated to warrant my recusal under HRCJC Rule
2.11(a)(6)(A). See Philip Morris USA Inc., 156 F. Supp. 3d at 48
("although [a former law partner's client's] legal position
mirrors [the defendant's], their common positional interest is
simply too attenuated to warrant my recusal under Section
455(b)(2)").
Matsuyoshi further contends that my February 14, 2014
declaration, filed in the Bald appeal, rendered me a "witness" in
the matter in controversy. Because Matsuyoshi appears to raise
this argument under HRCJC Rule 2.11(a)(6)(C), I separately
analyze her contention below.
Accordingly, for all of these reasons, I conclude that
HRCJC Rule 2.11(a)(6)(A) does not require my recusal in this
appeal.
3. Recusal Under HRCJC Rule 2.11(a)(6)(C)
On February 14, 2014, I filed a declaration in the Bald
appeal in support of Wells Fargo's request to the Ninth Circuit
for judicial notice. The request asked the court to take
judicial notice of certain court records filed in other cases, as
identified in Wells Fargo's answering brief (see supra), which
raised issues related to the issues in the Bald appeal. My
accompanying declaration authenticated the documents that Wells
Fargo sought to have judicially noticed, none of which concerned
the present case (e.g., "Attached hereto as Exhibit 5 is a true
and correct copy of the Complaint, filed August 6, 2013, in
Hungate v. Law Office of David B. Rosen, Civ. No. 13-1-2146-08
RAN (Haw. 1st Cir. Ct.)[.]") This is the common means by which
litigants in the state and federal courts in Hawai#i submit
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documents to the court for its consideration. Filing such a
declaration did not metamorphize me into "a witness concerning
the matter [in controversy]." HRCJC Rule 2.11(a)(6)(C).
Indeed, Matsuyoshi's counsel in this appeal filed a
similar declaration, attaching various documents from other
cases, in support of her motion for recusal or disqualification.
See Declaration of James J. Bickerton, filed on Dec. 21, 2020.
Submitting a declaration for this limited purpose does not
transform an attorney representing a party into a fact witness in
the case. Were it otherwise, the lawyer submitting such a
declaration would potentially create a conflict of interest with
his or her own client. See Hawai#i Rules of Professional Conduct
Rule 3.7.
Matsuyoshi offers nothing else in support of her
argument characterizing me as a "witness" in the "matter in
controversy," given that I have no personal knowledge of the
evidentiary facts related to the matter. See supra.
Accordingly, I conclude that HRCJC Rule 2.11(a)(6)(C) does not
compel my recusal in this appeal.
D. Recusal Under HRCJC Rule 1.2
Lastly, Matsuyoshi contends that I must recuse myself
because the same factors that purportedly require my recusal
under HRCJC Rule 2.11(a), create "an appearance of impropriety"
that compels my recusal under HRCJC Rule 1.2. Again, I disagree.
"The test for appearance of impropriety is whether the
conduct would create in reasonable minds a perception that the
judge's ability to carry out judicial responsibilities with
integrity, impartiality and competence is impaired." Office of
Disciplinary Counsel v. Au, 107 Hawai#i 327, 338, 113 P.3d 203,
214 (2005) (quoting Ross, 89 Hawai#i at 380, 974 P.2d at 20)
(brackets omitted); see HRCJC, "Terminology" (defining
"[a]ppearance of impropriety"). "Therefore, the test for
disqualification due to the appearance of impropriety is an
objective one, based not on the beliefs of the petitioner or the
judge, but on the assessment of a reasonable impartial onlooker
apprised of all the facts." Id. (quoting Ross, 89 Hawai#i at
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380, 974 P.2d at 20). See In re Conservation District Use
Application HA-3568, 143 Hawai#i at 392, 431 P.3d at 765 ("the
correct test for impropriety [is] whether a reasonable person
knowing all the facts would doubt the impartiality of [the
adjudicator], or whether the circumstances would cause a
reasonable person to question [the adjudicator's] impartiality").
This is essentially the same test applied in determining whether
the circumstances present an objective basis to conclude that the
judge's impartiality might reasonably be questioned.19/ See Ross,
89 Hawai#i at 380, 974 P.2d at 20. And, similarly, a judge is
duty-bound not to withdraw "where the circumstances do not fairly
give rise to an appearance of impropriety and do not reasonably
cast suspicion on his [or her] impartiality." Id. at 377, 974
P.2d at 17 (quoting Brown, 70 Haw. at 467 n.3, 776 P.2d at 1188
n.3) (emphasis omitted). See DeTemple, 162 F.3d at 287(recognizing that overly cautious recusal would improperly allow
litigants "to exercise a 'negative veto' over the assignment of
judges" simply by hinting at impropriety (quoting In re United
States, 666 F.2d 690, 694 (1st Cir. 1981))).
Where the connection to an alleged disqualifying
interest is "too attenuated," the Hawai#i Supreme Court has
rejected arguments that such circumstances rebut the presumption
that the adjudicator would be capable of impartiality and create
an appearance of impropriety. In re Conservation District Use
Application HA-3568, 143 Hawai#i at 392, 431 P.3d at 765 ("the
circumstances did not fairly give rise to an appearance of
impropriety and reasonably cast suspicion on [the adjudicator's]
impartiality"). See Ross, 89 Hawai#i at 377, 974 P.2d at 17
(noting that the judge's "connections to KTA had no relation to
the present controversy, [the defendant's] trial for criminal
harassment"); cf. Brown, 70 Haw. at 467, 776 P.2d at 1187-88 (due
process was offended where the judge who tried the defendant's
19/
This is not surprising, as one of the purposes of HRCJC Rule
2.11(a) is to promote confidence in the judiciary by avoiding even the
appearance of impropriety. See HRCJC Rule 1.2, Comment 3 ("Conduct that
compromises or appears to compromise the . . . impartiality of a judge
undermines public confidence in the judiciary.").
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criminal contempt proceeding was the same judge who had charged
the defendant with contempt).
For the reasons discussed above, I cannot conclude that
a reasonable, well-informed observer would question my ability to
be impartial in this appeal simply because of my previous
advocacy, while in private practice, on behalf of mortgagees in
other nonjudicial foreclosure litigation. "Reasonable, well-
informed observers understand that . . . lawyers personally . . .
do not necessarily agree or identify with their clients' actions
or interests." Phillip Morris USA Inc., 156 F. Supp. 3d at 50.
That holds true regardless of any similarity between the issues
once litigated and those pending before the judge. No reasonable
person would think, for example, that because I represented
mortgagees in the past that I favor mortgagees violating
statutory and other legal duties in conducting foreclosures. See
id. ("No reasonable person . . . would think that because I have
spent my career representing the criminally accused, I favor
people breaking the law.") Similarly, no reasonable person would
think, based on my prior advocacy, that now, as a judge, I do not
treat mortgagors fairly in foreclosure cases.
As also previously discussed, I have not represented
any mortgagee client for more than four years, I have no personal
knowledge of any evidentiary facts in this matter, and Matsuyoshi
has not established any connection between this appeal and Bald
(or any other case) that would cause a well-informed observer to
question my ability to be impartial in this appeal. On this
record, Matsuyoshi has failed to establish that a reasonable
person, knowing all the facts, would perceive as materially
impaired my independence, integrity, impartiality, temperament,
or fitness to fulfill my judicial responsibilities with respect
to this appeal.20/
Accordingly, I conclude that HRCJC Rule 1.2 does not
require my recusal in this appeal.
20/
By addressing Matsuyoshi's arguments in detail, I do not mean to
suggest that the same level of detail is necessary in resolving every recusal
motion that may come before a court. Rather, the applicable standard for
recusal governs the scope of the court's inquiry in a particular case.
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III. Conclusion
For the foregoing reasons, Matsuyoshi has not
established a statutory basis for disqualification under HRS
§ 601–7(b), and I decline to recuse under HRCJC Rules 1.2 and
2.11(a). Matsuyoshi's motion for disqualification or recusal is
therefore denied.
/s/ Clyde J. Wadsworth
On the motion:
James J. Bickerton and
Bridget G. Morgan-Bickerton
(Bickerton Law Group LLLP)
for Defendant-Appellant
Wayne Nasser,
Francis P. Hogan,
Benjamin M. Creps, and
Nicholas G. Altuzarra
(Ashford & Wriston, LLLP)
for Plaintiff-Appellee
37