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Mike Franco case file

Judge Sacks' Memorandum in support of denial of Franco's Motion for Recusal of Judge Sacks





HAMPDEN DIVISION                                                                    DOCKET NO.   98D 1058



MIKE FRANCO,                              )                                              

                        PLAINTIFF                )


v.                                                         )


LORNA L. HORN,                           )   

                        DEFENDANT            )




(Filed August 6, 2003)


            This memorandum is written in connection with the present denial of the Plaintiff’s Motion for Recusal under which he alleges a “pattern of lies, bigotry and cowardice” against this Court.  The Court takes judicial notice that similar motions have been filed by the Plaintiff asking the same relief from two other Justices regularly sitting in this Division.


            The question of judicial disqualification is ordinarily left to the discretion of the trial judge.  Fidelity Management & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 202 (1996); and see Haddad v. Gonzalez, 410 Mass. 855, 862 (1991).  The instant motion is governed by the language set forth by S.J.C. Rule 3:09, Canon 3 (C)(1)(a):


“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:  He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”  S.J.C. Rule 3:09, Canon 3 (C)(1)(a).


In consideration of Rule 3:09, a two-part test is applied to consider the question of judicial impartiality.  See Fidelity Management & Research Co., 40 Mass. App. Ct. at 202.  As set forth in Lena v. Commonwealth, the trial judge must first consider whether he or she is internally satisfied that matters regarding the movant can be heard fairly and impartially; and second, the judge must “attempt an objective appraisal of whether this was a proceeding in which his impartiality might reasonably be questioned.” 369 Mass. 571, 575 (1976); see also Commonwealth v. Zine, 52 Mass. App. Ct. 130 (2001), and Haddad v. Gonzalez, 410 Mass. 855,

862 (1991).  The Plaintiff’s unsupported allegations fail to cite a specific instance of bias, and therefore this Judge’s impartially cannot reasonably be questioned.


            No specific instance of bias or impartiality has been alleged or shown vis a vis this party and this Judge.  For this reason, the Court is satisfied, both internally and from an objective standpoint that matters heard concerning the movant have been and will be heard impartially.  It is noted that there is language in the instant motion, which could be stricken as “impertinent,” under the Massahusetts Rules of Domestic Relations Procedure, Rule 12 (f). 1


            The movant has not filed an affidavit in support of his motion.  See Demoulas v. Demoulas, 432 Mass. 43, n.7 (2000) (denying allegations which are unsupported prevents “a situation that would declare a virtual “open season” for recusal), citing United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986).  Rather, the moving party alleges a generalized “inherent” conflict because the party happens to live in the same area as the Judge, has chosen to become politically active, and has assumed a leadership role in an interest group related to family law cases.  In support of the instant motion, the Plaintiff did refer in Court to a television interview in which this Judge participated, however that interview was done some three years ago on the subject of discrimination in family law cases.  That a member of the same group in which the movant is active was also interviewed for the same interview was purely a matter of coincidence.  The Court had no knowledge about the other interview, nor that they would be juxtaposed.  Nevertheless, neither what was said during the interview, nor the giving of the interview give rise to any ground for recusal for this movant.


            The Court noted during argument its recollection of two instances occurring several years ago where the Court took affirmative steps to avoid prejudice to the movant.  One event was telephoning movant’s counsel from the Bench to advise him that his client’s then wife was in Court seeking ex-parte relief; the other event was advising the parties in Court after receiving an “emergency” telephone call from a State Trooper who was a friend and roommate of the wife and was calling as a character reference about the wife being a good mother.  During argument, the movant recalled that the officer was disciplined, and the Court pointed out that the discipline resulted from a report from this Judge.


            Neither of the two cases cited by the movant are legally on point in deciding the present motion.   First, in Duro v. Duro, 392 Mass. 574 (1984)), a custody judgment was vacated and remanded because a trial judge received oral reports from a probation officer considered to be extra-record information.  The motion to recuse filed by the plaintiff in Duro with the Trial Court was never ruled on.  Second, in Furtado v. Furtado, 380 Mass. 137 (1980), a criminal contempt judgment was vacated and remanded due to the trial judge’s active involvement in the probation department’s case against the defendant.


            In this case, the Court has examined the motion and considered the oral arguments of the movant, and in light of the controlling cases and the pertinent rule provision, finds there are no grounds for the allowance of the motion.  It has therefore been denied.


September 16, 2003                                                     //Signed//                                             

                                                                                    David G. Sacks, Justice, Probate Court



1. Section (f) governs motions to strike, whereby “… upon the Court’s own initiative at any time, the Court may after hearing order stricken from any pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.”  Mass. R. Dom. Rel. P. 12 (f)(2002).  The rule explicitly indicates that the Court may, “sua sponte, clean up the pleadings (literally and figuratively) at any time.”  (Reporter’s Notes 2002).