State of Idaho v. Freeman

MEMORANDUM DECISION

Defendant-Intervenors, National Organization for Women, et a 1, (hereinafter “NOW”) have filed a motion to disqualify the Honorable Marion J. Callister from further consideration of the above-encaptioned matter. NOW’s motion is styled as an original motion to disqualify brought pursuant to 28 U.S.C. § 455(a), but NOW makes it clear that they wish the Court to consider *710 the motion as one for reconsideration 1 of the Court’s ruling of October 4,1979, where the Court, in a memorandum decision, denied a similar motion to disqualify made by the defendant. State of Idaho v. Freeman, 478 F.Supp. 33 (D.Idaho 1979).

NOW’s motion for disqualification, or for reconsideration of the prior ruling, rests on essentially three premises. First, NOW argues that the Court did not use the correct legal standard in determining whether disqualification was required by § 455(a). Second, NOW contends that the Court’s attention was not directed to various facts which significantly strengthen the conclusion that a reasonable question as to impartiality is raised. Finally, NOW claims that the excommunication of Sonia Johnson from the Church of Jesus Christ of Latter-day Saints (“Mormons”) bears on the issue of whether a reasonable question is raised.

I. Background of the Case:

The underlying action is a suit filed by the states of Idaho and Arizona, and legislators from both states, asking for injunctive and declaratory relief, asserting the State’s right to rescind a prior ratification, and challenging the constitutionality of Congress’ action in extending the ratification period of the Equal Rights Amendment. The suit was filed on May 9, 1979.

In August of 1979, the defendant, through its counsel, the Department of Justice, filed a motion to disqualify Judge Callister under 28 U.S.C. § 455, contending that his impartiality might reasonably be questioned because he then held the position of a Regional Representative in the Church of Jesus Christ of Latter-day Saints. This association was objected to because the First Presidency of the Church of Jesus Christ of Latter-day Saints have publicly stated their opposition to the Equal Rights Amendment. The First Presidency of the Church has also opposed an extension of the ratification deadline.

In a memorandum decision filed October 4, 1979, Judge Callister denied the defendant’s motion stating that the

[defendant misconceives the relationship between churches and the Government. In our Nation, religion and government operate in separate spheres. The churches of this land, including the Church of Jesus Christ of Latter-day Saints, are involved in teaching things of a religious nature, including the moral obligations of those who believe in God and have the hope of resurrection and of a life hereafter in God’s kingdom.... However, religious societies have never claimed, nor have they been given, the right to interfere with the relationship between governments and their citizens, though they frequently and regularly encourage their church members to exercise the political rights which they possess to obtain proper representation and consideration in the legislatures of the states and of the Nation.

In this case, it is not claimed, nor could it be, that I have ever publicly expressed any opinion regarding the Equal Rights Amendment, participated in any demonstration for or against the amendment, or in any way involved myself improperly in the political process. The challenge is based solely upon the teachings of the church to which I belong. The teachings of the Church of Jesus Christ of Latter-day Saints include many ideals and principles which would govern in the perfect society. Nevertheless, church leaders have always taught that these principles can only be implemented when a majority of the people wish to implement them.

The church teaches that its members have a responsibility to seek the enactment of laws which are just and which protect the morality and freedom of the citizens of the land. However, the church has never taught either that it has any place influencing judges in their interpretation of the laws, or that a judge’s reli *711 gious beliefs take precedence over his sworn duty to uphold the Constitution and laws of the United States. There is a crucial distinction between legislative chambers, where everyone (including churches and religious groups) may express their opinions and lobby for the passage or defeat of a particular piece of legislation, and judicial chambers, where any attempt to bring pressure to bear on judges or to lobby for a particular decision would be totally improper. As a judge, I have no obligation to the church to interpret the law in any manner other than that which is required under the Constitution and the oath which I have taken. Under the facts as presented, a reasonable person would not conclude that impartiality of judgment in the instant case is foreclosed by virtue of the position that I hold in the Church of Jesus Christ of Latter-day Saints.

Stale of Idaho v. Freeman, supra, at 36-37.

The defendant did not seek interlocutory appeal or a writ of mandamus from the Court’s decision but indicated that it was satisfied with Judge Callister’s holding and would reserve the possibility of challenging his decision on final appeal of the case, if one were taken. 2

By order of this Court, October 10, 1979, NOW was granted status in this case as an *712 amicus curiae but denied full party status. After a successful petition to the Ninth Circuit, NOW was granted full party-defendant status by order of this Court dated September 4, 1980. Upon entry into the case, NOW filed this pending motion.

II. The Motion:

It is well established in the law that an intervening party has the right to litigate fully all issues relating to a pending action. 3B Moore’s Federal Practice, ¶ 24.-16[5] (1980); Wright & Miller, Federal Practice and Procedure: Civil § 1920 (1972). It is also recognized that decrees entered prior to intervention should not be set aside unless the “prior order or decree would deprive the intervener of substantial rights which he has not been remiss in pressing.” 3B Moore’s, supra, at 24-652. The fact that this Court has already ruled on a motion to disqualify does not foreclose the newly-intervening party from bringing a separate motion for disqualification. A question does remain, however, as to the propriety of NOW’s motion to reconsider the Court’s ruling of a year ago. From a perusal of the Federal Rules of Civil Procedure and the locally promulgated Rules for the United States District Court for the District of Idaho, it is evident that a motion to reconsider is not recognized or provided for. The Court will take note that such motions, however, are frequently filed and ruled on by the courts. The propriety of a court entertaining a motion to reconsider is founded in the equity jurisdiction of the courts which can be exercised to prevent error or needless appeal. Thus, it is within the Court’s discretion whether such a motion will be entertained.

In the instant case the Court can follow the defendant-intervenors’ suggestion and reconsider its prior ruling or treat the petition as an original motion to disqualify. Since disqualification under section 455 is viewed as self-executing, 3 and since NOW contends that new facts exist justifying disqualification, and because the Court finds no persuasive reason to reconsider its prior ruling, NOW’s motion will be treated as an original motion and considered on its own merits.

III. The Statutory Scheme for Disqualification :

The current framework governing judicial disqualification as embodied in sections *713 144 and 455 of the Judicial Code has received a considerable amount of attention from both the courts and law review commentators. See, e. g., United States v. Conforte, 624 F.2d 869 (9th Cir. 1980); United States v. Sibla, 624 F.2d 864 (9th Cir. 1980); Potashnick v. Port City Construction, 609 F.2d 1101 (5th Cir. 1980); Blizard v. Frechette, 601 F.2d 1217 (1st Cir. 1979); SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977); United States v. Ritter, 540 F.2d 459 (10th Cir.), cert. denied, Olson Farms, Inc. v. United States, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976); Matter of Searches Conducted on March 5, 1980, 497 F.Supp. 1283 (E.D.Wis.1980); 13 Wright, Miller & Cooper, Federal Practice and Procedure, § 3549 (1975); Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236 (1978); Note, Judicial Disqualification in the Federal Courts: Maintaining an Appearance of Justice Under 28 U.S.C. § 455, 1978 Law Forum 863; Comment, Caesar’s Wife Revisited — Judicial Disqualification After the 1974 Amendments, 34 Wash. & Lee L.Rev. 1201 (1977); Comment, Disqualification of Federal Judges for Bias Under 28 U.S.C. Section 144 and Revised Section 455, 45 Fordham L.Rev. 139 (1976).

The interrelation between section 144 and section 455 has been subject to various interpretations and has caused some confusion. 4 In particular two questions have yet to be firmly resolved: (1) whether the procedure called for under section 144 applies equally to section 455; and (2) whether the correct standard under section 455 is a bias-in-fact standard or an appearance of bias approach. Since, the courts applying section 455 have taken different approaches to these questions, and a resolution of these questions is important in evaluating NOW’s motion to disqualify, it is appropriate to review the development of sections 144 and 455 and the applicable standards under each.

The first federal disqualification statute enacted by Congress in 1792, and the origin of the present statutory scheme, drew from the well-developed English common law two grounds for disqualification. The 1792 statute provided for disqualification where a judge was “concerned in interest” in the cause, or had been “of counsel for either party.” 1 Stat. ch. 36, § 11, Act of May 8, 1792. This statute was amended in 1821 to include an additional ground for disqualification — relationship to a party. 3 Stat. ch. 51 at 643. 5 Finally, in 1911 another basis for disqualification was annexed to the existing statute — if the judge was a material witness for a party. At this same time the disqualification statute became section 20 of the Judicial Code of 1911.

The practice which arose around section 20 and its predecessors was essentially a challenge-for-cause statute whereby a judge was required to disqualify himself upon application of a party challenging his right to sit on the case based on one of the enumerated provisions of the section. 6 *714 While self-disqualification of a judge was not provided for on the face of the statutes, most courts held that a judge could act sua sponte to disqualify himself for one of the grounds provided in section 20. See, e. g., In re Eatonton Electric Co., 120 F. 1010 (S.D.Ga.1903); but see, Coltrane v. Templeton, 106 F. 370 (4th Cir. 1901) (however, there is no duty for a judge to disqualify sua sponte).

While a challenge under section 20 was initiated by application of one of the parties, it was for the challenged judge to determine whether a ground for disqualification in fact existed. In evaluating the grounds for disqualification, it was clear that the application was not pre-emptive, but that the judge could rely on all applicable facts bearing on the question. For example, in McGuire v. Blount, 199 U.S. 142, 26 S.Ct. 1, 50 L.Ed. 125 (1905), the trial judge was challenged on the ground that his wife had acquired an interest in the property which was the subject matter of the litigation. The judge denied his wife’s interest and denied the motion to disqualify. The judge stated on the record that his wife had been tendered a quitclaim deed to the property, but that the tender was refused and the deed was never delivered. The United States Supreme Court affirmed the trial court’s action, and noted that the judge had placed on file an affidavit of a real estate agent substantiating the facts revealed on the record. By so noting the trial judge’s actions, the Supreme Court evidenced their approval of the judge’s actions and the general procedure of considering all verifiable facts.

As interpreted by the courts, section 20 was subject to two major criticisms: (1) it contained no mention or mechanism for disqualification for bias or prejudice, either in fact or for the appearance thereof, and (2) the question of disqualification was almost wholly within the discretion of the challenged judge. See Coltrane v. Templeton, supra. Congress attempted to deal with these criticisms not by trying to amend section 20 nor change its procedures, but instead Congress addressed them by enacting a separate statute dealing specifically with bias and prejudice and provided it with a distinct set of procedures. The new section, which became section 21 of the Judicial Code of 1911, read as follows:

Whenever a party to any action or proceeding, civil or criminal, shall make and file 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 him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated ... to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, 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 such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceeding shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action.

Act of March 3, 1911, ch. 231, § 21, 36 Stat. 1090. 7 It bears repeating that section 21 was a separate section from section 20 with *715 a distinct ground for disqualification and a separate set of procedures for the parties to follow. The new section 21 differed significantly from section 20 in that it provided that whenever a party filed an affidavit of bias or prejudice, the challenged judge “shall proceed no further therein, but another judge shall be designated” to try the case. Thus, it appears that the section was meant to be peremptory 8 in nature. 9

One concern about adopting such a purely peremptory challenge was the potential for abuse and “judge-shopping.” To alleviate these concerns, Congress imposed several important procedural limitations on a section 21 disqualification. First, the allegation of bias or prejudice had to be made by the challenging party in affidavit form with a statement in the affidavit of the facts and reasons for the party’s belief that the judge was biased. Second, the affidavit had to be filed in a timely fashion. Third, counsel of record for the challenging party was required to certify that the affidavit was filed in good faith. And finally, in order to prevent unlimited “judge-shopping”, a party was permitted to make only one such challenge in any case.

Of these safeguards, it appears that only two directly address the problem of frivolous claims of prejudice. First, the factual basis of bias or prejudice has to be specific and sworn to by affidavit, and second, a certificate of good faith is required of counsel. It appears that Congress intended the perjury statute available against a false affidavit and disciplinary proceedings against the attorney to be sufficient to deter trivial and speculative allegations. Also, the requirement placed on the moving party’s attorney of filing a certificate of good faith not only insures the veracity of the facts, it also establishes a method of prescreening the adequacy of the allegations a party claims as a basis for disqualification.

Although from the face of section 21 and from its legislative history it appears that the section was designed to create a fully peremptory approach to disqualification where bias or prejudice is alleged, the United States Supreme Court chose not to give the section such a broad reading. In the leading case of Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), the court dealt with the peremptory nature of section 21. The court held that section 21 was not fully peremptory and that the challenged judge must consider the affidavit filed to determine if it states facts which are legally sufficient to require its disqualification. Under Berger a judge is *716 to disqualify himself only if the affidavit gives “fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” Id. at 33-34, 41 S.Ct. at 233. A judge’s discretion in reviewing the sufficiency of the affidavits is strictly limited however. The Supreme Court in Berger held that a judge could not consider the truth of the facts asserted in the affidavits, but' must accept them as true. This procedure under section 21 is thus markedly different from that under section 20 where the judge is not limited or bound by the facts asserted. See, e. g., McGuire v. Blount, supra.

Section 21 of the Judicial Code of 1911 was codified in 28 U.S.C. § 25. Later in 1948 it was recodified without significant change; thus all of the procedural requirements of section 21 were carried over into section 144. One of the few changes, however, that was made in the 1948 re-enactment was the addition of the qualifier “sufficient” to the word “affidavit.” 10 Thus, Congress reaffirmed the section’s semi-peremptory nature. 11

Section 20 of the Judicial Code of 1911, was recodified in 1948 as 28 U.S.C. § 455. Two changes were made that preserved its distinction from section 144. First, the requirement that disqualification be initiated by a party filing an application was eliminated. This changed section 455 from a challenge-for-cause provision to a self-enforcing disqualification provision where an affirmative duty is placed on the judge to determine whether there is any ground for disqualification in each individual case. See United States v. Amerine, 411 F.2d 1130, 1134 (6th Cir. 1969). Second, the adjective “substantial” was inserted as a modifier of the word “interest,” in setting forth the grounds for disqualification under the statute. The legislative history gives no clue as to why the word “substantial” was added; nevertheless, this change added to the ambiguity already evident in the standard to be applied.

Section 455, after its change in 1948, read as follows:

§ 455. Interest of justice or judge.

Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.

Act of June 25,1948, ch. 646, § 455, 62 Stat. 908. Because of the judicial gloss that has been put on the statute, plus the inherent ambiguity of the section, it soon became a thorn in the side of the judiciary. For example, the 1948 version of section 455 required a judge to disqualify himself sua sponte, but judicial gloss articulated an equally strong requirement or “duty to sit” on an assigned case, i. e., a judge has a duty to sit on a case, even over the objection of a party, if a valid statutory ground for dis *717 qualification did not exist. The case which best articulated this “duty to sit” rule was Edwards v. United States, 334 F.2d 360 (5th Cir. 1964), cert. denied, 379 U.S. 1000, 85 S.Ct. 721, 13 L.Ed.2d 702 (1965), wherein Judge Rives stated:

After such study as I could give the matter, I reached the conclusion that whether a judge should recuse himself in a particular case depends not so much on his personal preference or individual views as it does on the law, and that, under the law, I have no choice in this case.

It is a judge’s duty to refuse to sit where he is disqualified but it is equally his duty to sit when there is no valid reason for recusation.

334 F.2d at 362 n.2.

In a purely theoretical setting, these requirements appear to be compatible and complementary, but in actual application in difficult cases a conflict arose which was often resolved, to the chagrin of the movant, in the judge remaining on the case.

Besides the problem of apparently conflicting duties, the judges were also required to apply a rather ambiguous standard in reviewing an application for disqualification. A judge was to recuse himself in a situation where “he has a substantial interest ... in his opinion.” The word “substantial” was undefined and subject to myriad interpretations, especially when viewed from the subjective position of the judge applying his own opinion. Application of this inherently ambiguous standard put judges in a position where their decisions were frequently questioned, and second-guessed. 12

The ABA Code of Judicial Ethics provided very little guidance for judges faced with challenges to their impartiality. See, e. g., ABA Canons of Judicial Ethics Nos. 4, 13, 29, 33; Miller, Public Confidence in the Judiciary; Some Notes and Reflections, 35 Law & Contemp. Prob. 69, (1970). In 1972, however, the American Bar Association appointed a special committee, chaired by former Chief Justice Roger J. Traynor of the California Supreme Court, to revise the Canons of Judicial Ethics. The new Canon tracked the existing grounds for disqualification but established a more detailed standard. The ABA Code of Judicial Conduct, Canon 3 C, provided in relevant part:

3 C. Disqualification

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or has personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) 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 *718 such lawyer has been a material witness concerning it;

(c) 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;

(d) 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;

.... 13

The most notable feature of the new Canon was an incorporation of an objective “appearance” of justice standard, whereby the challenged judge was required to disqualify himself whenever his impartiality might reasonably be questioned.” See, generally, Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736 (1973); Note, Judicial Disqualification in the Federal Courts: Maintaining an Appearance of Justice Under 28 U.S.C. § 455, 1978 Law Forum 863, 867. Also, the new section picked up an additional ground for disqualification “where (a) he has a personal bias or prejudice concerning a party, or has personal knowledge of disputed evidentiary facts concerning the proceeding .... ”

During 1973 the House Committee on the Judiciary followed the lead of the ABA and took steps to correct the ambiguities in the statutory scheme which they felt put the judges on the “horns of a dilemma,” and tended to weaken confidence in the judicial system. H.R.Rep.No.93-1453, 93rd Cong., 2d Sess. 2, reprinted in [1974] U.S.Code Cong. & Ad.News 6351, 6352. Senator Quentin N. Burdick of North Dakota introduced a bill with the cosponsorship of Senators Ernest F. Hollings of South Carolina, and Birch E. Bayh of Indiana to amend section 455 and incorporate the ABA canon. 14 The new code provision was passed in 1974 and provided in pertinent part: 15

§ 455. Disqualification of justice, judge, magistrate, or referee in bankruptcy

*719 (a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(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..... 16

Act of Dec. 5, 1974, Pub.L.No.93-512, § 1, 88 Stat. 1609 (codified at 28 U.S.C. § 455 (1976)).

It is evident in comparing Canon 3 C and section 455 that certain changes were made and words added in the final version of the enacted statute. These modifications apparently were viewed by the legislators as merely “technical.” 17

*720 From its inception the 1974 version of section 455 had no particular procedural requirements included with it as are found in section 144. And it was clear that section 455 was not to be peremptory. This is evident by the fact that between 1970 and 1973 Senator Bayh twice proposed amendments to section 144 which would have provided parties with a clear peremptory challenge to a judge assigned to a case. 18 These proposals were refused by Congress and the only action taken dealt solely with section 455. 19 Courts and commentators have all agreed that the 1974 version of section 455 is self-enforcing and does not require any action by the parties. See, Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975); Wright, Miller & Cooper, Federal Practice & Procedure, § 3550. Thus the procedural requirements, or the lack thereof, are carried over from the prior section.

One of the most important parts of the new section 455 was the opening subsection (a). This subsection was denoted as a catch-all provision to supplement the grounds for disqualification under subsection (b). This general standard provides for self-disqualification in a proceeding in which a judge’s “impartiality might reasonably be questioned,” thus adopting the objective standard advocated by the ABA canon. This new objective standard has been at various times referred to as “the reasonable man,” “a reasonable appearance,” or “the reasonable factual basis” test. See Parrish v. Board of Comm’rs of Alabama State Bar, 524 F.2d 98, 103 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). The Fifth Circuit in Parrish articulated the test as one where a claim under subsection 455(a) is “supported by facts which would raise a reasonable inference of a lack of impartiality on the part of the judge in the context of the issues presented in a particular law suit.” Parrish, supra, at 103-04. The Reporter for the ABA Committee that drafted the Code of Judicial Conduct (from which the standard of subsection 455(a) is taken verbatim) explained the standard as follows:

Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s “impartiality might reasonably be questioned” is a basis for the judge’s disqualification.

*721 Thode, Reporter’s Notes to Code of Judicial Conduct (1973), 100. (emphasis added)

Therefore, while the standard under subsection 455(a) is an objective one, and the same section in no way pre-empts a judge from considering the basis of the motion to disqualify, it appears appropriate for the judge to evaluate all the facts 20 and circumstances surrounding the alleged appearance of impartiality and determine if a reasonable, uninvolved observer would question the judge’s impartiality. 21 One commentator has pointed out with respect to the standard found in both the Code of Judicial Conduct and section 455:

The test actually adopted in the Code ... seeks to guarantee not only that a biased judge will not participate but also that no reasonable person will suspect as much; the appearance [emphasis in original] of impartiality throughout the judiciary is the goal. The fact that the Code adopts the standard of a reasonable man knowing all the facts does not reduce this emphasis on appearance. Hidden facts indicating partiality may at any time come into public view and therefore are legitimate elements of an appearance test; and hidden facts tending to rebut an inference of partiality are presumably in the judge’s power to reveal once public suspicion of his partiality in a given instance has been aroused, (citation omitted) (emphasis added)

Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745-46 (1973).

If a judge who is being asked to disqualify himself cannot make all relevant facts known, or rebut those facts that are false and which if left unrefuted would create a reasonable question of impartiality, the result would be an essentially pre-emptive proceeding where the judge would be “the victim of the appearance of impropriety ...” (emphasis added) 22 with no recourse to remove a possible taint on his integrity. Furthermore, allowing a judge the liberty to evaluate the truth, as well as the sufficiency of the alleged facts, is compatible with the Congressional attempt to control bad-faith litigants’ manipulation of the disqualification procedure. This is evident because section 144 has attending procedural requirements to prevent abuse of the disqualification process; section 455 on the other hand permits the judge to edit the inaccurate allegations which could be the basis for disqualification under an appearance of partiality standard. See, 46 U.Chic. L.Rev., supra at 250.

The adoption of the “appearance of impartiality” test implemented in section 455(a), besides creating an objective standard, was also intended to relieve the conflicting duties imposed on judges of sua sponte disqualification, and the “duty to sit” in proper cases. The legislative history of the new section made it clear that the “duty to sit” rule had been done away with. By eliminating the “duty to sit” rule Congress hoped to “enhance public confidence in the impartiality of the judicial system.” H.R.Rep.No.1453, 93d Cong., 2d Sess. 2, 5 *722 (1974), reprinted in [1974] U.S.Code Cong. & Ad.News at 6352, 6355. While most courts acknowledge the clear legislative intent of abolishing the “duty to sit” rule, see, e. g., United States v. Wolfson, 558 F.2d 59, 63 (2d Cir. 1977); United States v. Haldeman, 559 F.2d 31, 139 n. 360 (D.C.Cir.1976) (en banc) (per curiam) cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Davis v. Board of School Comm’rs, 517 F.2d 1044, 1052 (5th Cir.) cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1975); Hawaii-Pacific Venture Capital Corp. v. Rothbard, 437 F.Supp. 230, 234 (D.Hawaii 1977); Smith v. Pepsico, Inc., 434 F.Supp. 524, 526 n.2 (S.D.Fla.1977); Fong v. American Airlines, Inc., 431 F.Supp. 1334, 1337 (N.D.Cal.1977); Bradley v. Milliken, 426 F.Supp. 929, 933 (E.D.Mich.1977); Samuel v. University of Pittsburgh, 395 F.Supp. 1275, 1277 n.3 (W.D.Pa.1975), vacated on other grounds, 538 F.2d 991 (3d Cir. 1976), other courts have either overlooked the legislators’ intent or have sought to articulate some limited version of that duty. See, e. g., United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976); Smith v. Danyo, 441 F.Supp. 171, 175 (M.D.Pa.1977); Honneus v. United States, 425 F.Supp. 164, 166 (D.Mass.1977); United States v. Sinclair, 424 F.Supp. 715, 719 (D.Del.1976); Andrews, Mosburg, Davis, Elam, Legg & Bixler, Inc. v. General Ins. Co., 418 F.Sup