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People v. Griepp

United States District Court, E.D. New York

January 8, 2018

KENNETH GRIEPP, et al., Defendants.


          James Orenstein, Magistrate Judge:

         In two separately filed motions, all of the defendants seek to disqualify me based on assertions that I am biased and that my continued participation in the case creates an appearance of impropriety. See Docket Entry ("DE") 139; DE 146; 28 U.S.C. §§ 144, 455. For the reasons set forth below, I deny the motions pursuant to Section 455. Briefly stated, the motions are predicated on a mix of false statements, distortions of fact, and truthful assertions presented out of context in a misleading fashion. Because I continue to be impartial, and because an accurate account of the pertinent facts does not support either an inference that I am actually biased or a conclusion by a fully informed neutral observer that my continued participation in the action would be improper, there is no basis for my disqualification. I take no action on the motions pursuant to Section 144, which must be resolved by the assigned district judge.

         I. Background

         The plaintiff has accused several individual defendants of interfering with the rights of women to seek and receive reproductive health-care services offered at Choices Women's Medical Center in Queens, New York (the "Clinic"); and, as a remedy, seeks declaratory and injunctive relief, an award of damages, and the imposition of civil penalties. See DE 1 (Complaint); 18 U.S.C. § 248 (the federal Freedom of Access to Clinic Entrances Act); New York Clinic Access Act, N.Y. Civ. Rights Law § 79-m (the portion of the New York Clinic Access Act authorizing the New York Attorney General to seek an injunction); N.Y.C. Admin. Code §§ 8-803 and 8-804 (the New York City Access to Reproductive Health Care Facilities Act). The case was randomly assigned to me for the oversight of non-dispositive pretrial matters pursuant to Local Civil Rule 72.2. See Docket Entry dated June 20, 2017.

         After the Complaint was filed, the parties did not begin a formal exchange of discovery, but instead proceeded to litigate motions for dismissal and preliminary injunctive relief. As a result, I took no part in the action during its initial stages aside from ministerial functions relating to the admission and withdrawal of counsel and the approval of a stipulated protective order. See Order dated December 6, 2017. My first (and thus far only) substantive role in the case began when the court sua sponte directed me to convene a settlement conference, which I did on December 11, 2017. See Minute Entry & Order dated December 7, 2017; DE 136.[1] Because the motion to disqualify me is predicated on the movants' description of the unrecorded events of that conference, I summarize below details of the colloquy to the extent necessary to assess the motion's merits.

         At the outset of the conference, I met in the courtroom with all counsel as well as all of the attending defendants: Kenneth Griepp (who was joined by his wife, non-party Lois Griepp), Ronald George, Patricia Musco, Anne Kaminsky, Sharon Richards (the true name of defendant Sharon Doe, see DE 35), Prisca Joseph, Angela Braxton, and Scott Fitchett, Jr.[2] After making introductions, I explained to all present that the conversation would be an informal and off-record discussion and that nothing anybody said during the conference could be used in any way for purposes of litigation. Consistent with my usual practice at settlement conferences, I also explained that I would find it useful to hold separate conversations with each side, but that I would only do so if all parties and counsel present consented to such ex parte contact and agreed that it would not form a basis for seeking my disqualification should the case not settle. All of the defendants stated that they understood, and that they consented to my participation in ex parte discussions, as well as to my law clerk's presence for all such talks.[3]

         Similarly consistent with my usual practice in settlement conferences (at least, in those cases where the record or the parties' pre-conference statements of settlement position suggest a low likelihood of agreement), I advised the attendants that I would stop the conference if it appeared to have no hope of producing an agreement. In particular, I made clear that if and when either side took a position that I concluded would make settlement impossible, such as identifying a non-negotiable position that the other side could not accept, I would immediately conclude the conference. All present expressed their understanding of that advice.

         I then separated the two sides to begin the ex parte discussions. Because of the large number of people on the defendants' side, I invited them to remain in the courtroom while I conferred with the plaintiff's counsel in the jury room adjacent thereto. I held a lengthy discussion with the plaintiff's counsel to understand their perspective on the factual and legal disputes of the case, their litigation goals, and the contours of a consensual resolution that they thought would be acceptable to both sides. At the end of that discussion, which I believe lasted the better part of an hour, I asked them to remain in the jury room while I spoke with the defendants.

         I returned to the courtroom and started to convey the plaintiff's proposal, but the defendants' counsel asked me to defer doing so until each of the individual defendants had an opportunity to tell me about themselves. Counsel suggested, and I readily agreed, that it would be useful for me to have an understanding of each defendant's background and, in particular, the personal experiences that motivated each to spend time attempting to provide sidewalk counseling to the women who approached the Clinic's entrance.

         I then heard from each of the attending defendants (as well as non-party Lois Griepp) in turn. Some spoke for only a few minutes, others took longer, and one of the defendants spoke at great length. All spoke sincerely, and at times emotionally, about deeply held beliefs, and all made a deep impression on me. Although I had hoped to proceed more quickly to a discussion of settlement proposals (I did not watch the clock, but estimate that it took about an hour to hear from all of the attending defendants), I considered the time well spent because it gave me a much better understanding of how the defendants perceived the stakes of the litigation and their needs with respect to settlement.

         Because the litigation centers on the interactions between the defendants and those they seek to counsel, and in particular because the plaintiff seeks to enjoin certain conduct if the offer of counseling is rejected, I specifically asked each speaker to address how he or she would respond to a person who expressed an unwillingness to receive the proffered counsel. In addition, I spent several minutes in colloquy with one defendant who told me he is a teacher. Because he must sometimes, in the interest of maintaining classroom order and discharging his teaching duties, silence students who may think they have important things to say, I thought it important to have an understanding of how he believes such interactions should proceed when he is the person who seeks to defer speech, rather than the person whose speech the listener may prefer to avoid. As with all of my discussions with the defendants, my discussion with the teacher was wholly cordial.

         During the defendants' individual presentations, I sat at one end of the counsel table, the defendants sat in the jury box, and their attorneys sat between us, at one side of the counsel table. Because of that positioning, when two of the defendants' attorneys were whispering to each other, their visible and audible conversation distracted me from their clients' statements. I therefore reminded counsel that I was listening to their clients at their suggestion and said that I was eager to hear what their clients had to say. I made clear that it might be important for counsel to confer with one another during the presentation, but that such conversation should occur outside the courtroom while their co-counsel remained inside. The two attorneys stopped talking and remained in their seats. Soon, however, they began exchanging notes - and again, because of their positions between me and their clients in the jury box (albeit not in my direct line of sight to the speakers), their conduct distracted my attention from the defendant who was then telling me about herself. With apologies to that defendant for interrupting her, I again asked counsel either to stop passing notes, or to leave the courtroom to hold their discussion. Both attorneys stayed in their seats and stopped passing notes.

         As the defendants completed their presentations, I understood all of them to be asserting an interest in offering counseling to those seeking to enter the Choices Clinic and a willingness to disengage if and when a person to whom they offered such counseling declined to speak. However, while I had a better understanding of what the defendants wanted to say, and why they wanted to say it, I did not yet have a sense of the manner in which they sought to engage the people they encountered or how their preferences in that regard might or might not be compatible with the plaintiff's settlement proposal (which involved demarcation of the sidewalk adjacent to the Clinic to ensure that patients uninterested in receiving counseling would have an unobstructed path to enter). Some of the defendants had referred to their use of posters, but I did not yet understand how they sought to place themselves and their signs in relation to pedestrians outside the Clinic. I therefore asked the defendants to demonstrate to me exactly what they wanted to be able to do. Neither the defendants nor their counsel objected to the proposal. I therefore stood at the courtroom's public entrance while the defendants arranged themselves in the courtroom to begin the demonstration.

         As they were about to begin, counsel asked to participate in the demonstration by pretending to be non-party Clinic escorts. I did not think such participation would be useful for two reasons. First, I had no reason to assume that the attorneys, all of whom maintain offices outside of New York State, had sufficient first-hand experience of the sidewalk encounters at issue in the case to offer an accurate portrayal of the escorts, even if they were committed to doing so in an objective fashion. Second, and more important, the escorts' actions were not the subject of my inquiry at that stage of the discussion: rather, I was trying to understand the defendants' settlement goals by gaining a better understanding of how they wished to be able to offer ...

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