Lawson v. University of Hawaii et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
KENNETH L. LAWSON,
Plaintiff,
vs.
UNIVERSITY OF HAWAI‘I, et al.,
Defendants.
Civil No. 24-00172 LEK-RT
ORDER DENYING MOTION FOR
RECUSAL OF DISTRICT COURT
JUDGE PURSUANT TO 28 U.S.C.
§§ 144 AND 455
INTRODUCTION
Plaintiff Kenneth L. Lawson moves to recuse the assigned U.S. District
Judge, the Honorable Leslie E. Kobayashi, from his pending civil lawsuit. ECF
Nos. 45 & 46. The motion has been referred to me for decision. Because I
conclude there is no valid basis for Judge Kobayashi’s recusal from this case, the
motion is DENIED.
BACKGROUND
A. Factual Background
Professor Lawson is a tenured faculty member at the William S. Richardson
School of Law (WSRSL), the law school of the University of Hawai‘i at Mānoa
(UH). ECF No. 43 (First Am. Verified Compl.), at PageID.1279. In this lawsuit,
he principally alleges that UH and WSRSL officials have violated his First
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Amendment rights (through viewpoint discrimination, retaliation, and prior
restraints), his Fourteenth Amendment procedural due process rights, and his
statutory right to be protected from civil rights violations. ECF No. 43. At the
heart of his claims is a faculty meeting that took place on February 17, 2023.
Here is how Professor Lawson describes that meeting. During an open-
forum portion of the gathering, Professor Lawson—who is himself a “Black male
of African American descent,” id. at PageID.1281—asked “why no Black people
were asked to serve” on an upcoming Black History Month program “on the U.S.
Black Civil Rights Movement and Dr. Martin Luther King’s Letter from the
Birmingham Jail,” id. at PageID.1291. Professor Lawson “explained why this
slight had been hurtful, particularly to WSRSL’s Black students, even if done
innocently.” Id. He “called it an example of ‘Nice Racism,’” id., which he defines
as “racism resulting from unconscious racial bias,” id. at PageID.1294. When
Camille Nelson—the Dean of WSRSL—stated that, as a Black woman, she
understood his concerns, Professor Lawson countered that because Dean Nelson
“had been born and raised in Jamaica and Canada, respectively, she and her family
did not personally experience the U.S. Black Civil Rights Movement, Jim Crow
segregation, or forced busing, which is the legacy that Black History Month is all
about.” Id. at PageID.1292. Professor Lawson described, among other things, the
“physical beatings and discrimination his parents and other close family members
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endured as victims of racism at the height of the U.S. Black Civil Rights
Movement,” and he explained that he “followed the teachings of Malcolm X who
believed in protesting peacefully but using self-defense if attacked.” Id. at
PageID.1292-93. When “a White female faculty member” questioned why Black
persons would “feel hurt,” given that “Black people could attend the event and
participate from the audience,” Professor Lawson rejoined that this was “another
example of ‘Nice Racism.’” Id. at PageID.1293-94.
The next day, Professor Lawson sent an email to Dean Nelson and others
“reiterating his concerns about the Black History Month event.” Id. at
PageID.1295. Later, “Professor Lawson used the WSRSL listserv on February 21,
2023, to call for a boycott of the Black History Month event.” Id. at PageID.1297.
At some point after the February 17, 2023, meeting, Dean Nelson made
“racial discrimination claims” against Professor Lawson to UH’s provost, Michael
Bruno, and requested that Professor Lawson “be required to undergo anger
management training.” Id. at PageID.1295. Dean Nelson thereafter “encouraged
or solicited others to make complaints.” Id. Within a week, Title IX complaints
were made against Professor Lawson. Id. at PageID.1301. In response to these
complaints, Provost Bruno “unilaterally banned Professor Lawson from the
WSRSL campus indefinitely, restricted his use of the WSRSL listserv, and issued
no-contact orders against Professor Lawson,” pending the outcome of Provost
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Bruno’s investigation. Id. at PageID.1304. Professor Lawson challenged these
sanctions through UH’s internal procedures, but they were upheld.
This lawsuit followed. In it, Professor Lawson alleges that the complaints
that Dean Nelson and others made against him were pretextual. See, e.g., id. at
PageID.1325-29. As he sees it, UH’s sanctions against him were retaliation for the
viewpoints he expressed at the February 17, 2023, meeting.1
B. Procedural Background
Professor Lawson brought his first federal lawsuit in August 2023. See Civil
No. 23-00348-LEK-RT. He later voluntarily dismissed that first lawsuit, and then
filed a new complaint on April 15, 2024, which initiated the pending lawsuit. ECF
No. 1. In this suit, Professor Lawson names the University of Hawaiʻi as a
defendant. He also names Provost Bruno, Dean Nelson, David Lassner (UH’s
President), and Nicholas A. Mirkay (Associate Dean of WSRSL) as defendants in
their official and individual capacities. ECF No. 43 (First Am. Verified Compl.),
at PageID.1276.
After initiating the current action, Professor Lawson moved for a
preliminary injunction. ECF No. 14. He followed with a motion for a temporary
1 The complaint also contains a number of factual allegations to the effect that
WSRSL has denied Professor Lawson “equal pay for equal work.” ECF No. 43, at
PageID.1285. Professor Lawson’s federal lawsuit does not, however, bring claims
based on unfair or discriminatory compensation.
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restraining order. ECF No. 20. After a hearing, Judge Kobayashi denied the
request for a temporary restraining order in a twenty-six-page written order,
finding that Professor Lawson had not established a likelihood of success on his
First Amendment retaliation claim. ECF No. 24. Judge Kobayashi concluded,
among other things, that Professor Lawson had failed to show that it was his
constitutionally protected speech, as opposed to his conduct, that prompted the
disciplinary actions against him. Id. at PageID.982-84.
Defendants moved to dismiss or stay the case, pending the resolution of two
other cases based on the same facts and brought by Professor Lawson in state
court. ECF No. 40. Judge Kobayashi set a briefing schedule and a hearing on
Defendants’ motion. ECF No. 42. But less than a week later, on May 30, 2024,
Professor Lawson filed a First Amended Verified Complaint, ECF No. 43, as well
as a new motion for a temporary restraining order and preliminary injunction, ECF
No. 44. That same day, Professor Lawson moved for the recusal of Judge
Kobayashi from his case. ECF No. 45.
DISCUSSION
Professor Lawson seeks Judge Kobayashi’s recusal under two separate
statutory provisions: 28 U.S.C. §§ 144 and 455. The same standard governs both
provisions: an assigned judge should be recused only if “a reasonable person with
knowledge of all the facts would conclude that the judge’s impartiality might
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reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.
2008) (internal quotation marks omitted), abrogated on other grounds by Simmons
v. Himmelreich, 578 U.S. 621 (2016).
Importantly, the “reasonable person” is “not someone who is hypersensitive
or unduly suspicious, but rather is a well-informed, thoughtful observer.” United
States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (internal quotation marks
omitted). The Ninth Circuit has cautioned that the “reasonable person” standard
“must not be so broadly construed that it becomes, in effect, presumptive, so that
recusal is mandated upon the merest unsubstantiated suggestion of personal bias or
prejudice.” Id. (internal quotation marks omitted); see also ABA Comm. on Ethics
& Pro. Resp., Formal Op. 488 (2019) (“[J]udges must avoid disqualifying
themselves too quickly or too often lest litigants be encouraged to use
disqualification motions as a means of judge-shopping . . . .”). Moreover, the
alleged bias “must usually stem from an extrajudicial source”—that is, a judge’s
rulings alone will not afford a valid basis for recusal, except in highly unusual
circumstances. Pesnell, 543 F.3d at 1044.
Although Sections 144 and 455 require the same substantive assessment,
they have different procedural requirements. Whereas the assigned district judge
ordinarily must resolve a Section 455 motion for herself, Section 144 instead
requires that a timely affidavit “be referred to another judge for a determination of
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its merits.” United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). And in his
motion, Professor Lawson himself requests that “another district judge decide this
motion pursuant to § 144.” ECF No. 45, at PageID.1698. For these reasons,
Professor Lawson’s motion for recusal is properly before me.
In his motion, Professor Lawson argues that Judge Kobayashi should be
recused from his lawsuit because of what he characterizes as her “undisclosed and
ongoing personal associations” with certain defendants. Id. at PageID.1697. In
particular, Professor Lawson complains of (1) Judge Kobayashi’s associations with
Dean Nelson, and (2) Judge Kobayashi’s associations with UH and WSRSL. I will
address each of these in turn.
A. Judge Kobayashi’s Associations with Dean Nelson
Professor Lawson’s motion makes the following factual allegations about
Judge Kobayashi’s associations with Dean Nelson, which I accept as true for
purposes of resolving his motion:
• Judge Kobayashi serves on the Board of Advisors of the Institute for
the Advancement of the American Legal System (IAALS), on which
Dean Nelson also serves, and joined that board shortly after she had
been assigned to preside over this case; and
• Judge Kobayashi attended IAALS board meetings, which Dean
Nelson also attended, while Professor Lawson’s lawsuit was pending.
Professor Lawson does not suggest that Judge Kobayashi is receiving
compensation (beyond reimbursements for travel and the like) for her service on
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IAALS’s board. His argument, instead, is that as “members of the IAALS Board,
Judge Kobayashi and Defendant Nelson share a vested interest in protecting and
upholding the reputation of IAALS and its Board members.” Id. at PageID.1700.
In Professor Lawson’s view, “[a] reasonable person would expect Judge Kobayashi
to give her fellow Board member the benefit of doubt in the case of a close call.”
Id.
I do not agree. Critical to my assessment is the fact that IAALS is an
organization devoted to the proper administration of the legal system. See ECF
No. 45-7, at PageID.1789 (“IAALS, the Institute for the Advancement of the
American Legal System at the University of Denver, is an independent research
organization that innovates and advances solutions that make our civil justice
system more just.”). While a reasonable person might assume that a judge has
unusually close friendships and shared private interests with fellow members of a
non-law-related board—imagine, for instance, the judge who goes out of his way
to join the board of a birdwatching group—the same cannot be said of a judge who
joins the board of a legal organization. A reasonable person would infer that a
judge who chooses to volunteer her time on the board of an organization such as
IAALS is doing so because of her professional interest in helping to promote the
sound administration of the law. That is certainly the proper inference for Judge
Kobayashi, who, as Professor Lawson recognizes, see ECF No. 46, at
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PageID.1822, is also a member of the Judicial Conference of the United States—
the national policymaking body for the federal judiciary—and thus has exceptional
administrative experience. It follows that a reasonable person would not assume
that Judge Kobayashi’s relationship with other members of a board such as IAALS
is anything other than professional.
Professional relationships of the sort presented here do not require recusal.
Consider, for example, Judge Martin’s opinion denying a recusal motion in Mass v.
McClenahan, No. 93 Civ. 3290, 1995 WL 106106 (S.D.N.Y. Mar. 9, 1995). Judge
Martin explained:
As a judge, I have continued to be active in bar association affairs and
serve as a member of a committee of the Association of the Bar of the
City of New York. In connection with that service, I have worked on
reports with other members of the committee. I certainly would not
consider such professional association alone as giving rise to a ground
for recusal if another such member of that committee were to appear
before me.
Id. at *3. Judge Kobayashi’s relationship to Dean Nelson is akin to the “other
members of the committee” to which Judge Martin referred. Id. Professional
associations of that sort do not give rise to a ground for recusal. Id. And while an
“unduly suspicious” person might read more into Judge Kobayashi’s board
membership on IAALS, a “well-informed, thoughtful observer” would not.
Holland, 519 F.3d at 913 (internal quotation marks omitted).
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Professor Lawson nonetheless argues that there are unique circumstances
here that make Judge Kobayashi’s board membership concerning. In particular, he
points out that he filed his first federal lawsuit naming Dean Nelson as a defendant
in August 2023; that Judge Kobayashi was appointed to the board in September
2023; that Judge Kobayashi and Dean Nelson traveled to Colorado for an IAALS
board meeting in October 2023; that Judge Kobayashi denied his request for
expedited consideration of his motion for a preliminary injunction on April 19,
2024; and that, days later on April 25, 2024, there was another IAALS board
meeting. ECF No. 45, at PageID.1701. These facts and dates show that Judge
Kobayashi was associating with IAALS while also presiding over Professor
Lawson’s case. But given that professional associations of this sort do not require
recusal, Judge Kobayashi had no obligation to abstain from IAALS activities
during the pendency of this suit.
More generally, Professor Lawson suggests that a reasonable person “could
consider it highly unlikely that a Hawaii-based Judge and the Dean of Hawaii’s
only law school would end up on the Board of a Colorado-based organization
wholly independently of one another’s assessment of the other.” Id. at
PageID.1702. But there can be no suggestion that Dean Nelson was accepted onto
IAALS’s board because of any positive evaluation by Judge Kobayashi; as
Professor Lawson recognizes, Dean Nelson has been a member of the board since
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2018, well before Judge Kobayashi joined. Id. And no reasonable person would
infer that Judge Kobayashi became a member of IAALS’s board because of Dean
Nelson’s arm twisting. Put differently, there is no reason to believe that a judge
with Judge Kobayashi’s extensive experience—which includes not only decades of
service as a U.S. Magistrate Judge and U.S. District Judge, but also, as noted,
service on the Judicial Conference of the United States—would require an assist
from Dean Nelson to be accepted onto IAALS’s board.
Professor Lawson also suggests that it is the nature of his claims that raises
concerns. Recall that Professor Lawson’s claims grow out of a February 17, 2024,
faculty meeting at which Dean Nelson was present. Recall, too, that Professor
Lawson contends that Dean Nelson and others made pretextual claims against him
in an effort to retaliate for viewpoints he expressed at the faculty meeting.
Professor Lawson suggests that Judge Kobayashi would be reluctant to find that
another member of IAALS’s board violated his constitutional rights. See id. at
PageID.1700. That suggestion is not persuasive. Professor Lawson’s lawsuit does
not allege that Dean Nelson or any other member of IAALS’s board has engaged
in any board-related impropriety. The allegations concern, instead, Dean Nelson’s
conduct in the course of her employment at WSRSL—conduct having no palpable
connection to her service on IAALS’s board, on which she had been serving before
she became WSRSL’s dean. There is no reason to doubt Judge Kobayashi’s
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impartiality as to claims of that sort. The fact that Judge Kobayashi has a
professional association with IAALS board members would not lead a reasonable
person to question whether she can impartially assess the behavior of any of those
board members in their non-board capacities. See In re Complaint of Jud.
Misconduct, 816 F.3d 1266, 1267-68 (9th Cir. 2016) (dismissing complaint that
alleged the “appearance of impropriety” because of a judge’s affiliations with the
defendant university, and noting that “service on an alumni board” does not create
an appearance of impropriety “when it does not create a fiduciary interest in
pending litigation”).
Finally, in a supplemental filing, Professor Lawson contends that Judge
Kobayashi has not fully complied with her mandatory obligation to file an annual
Financial Disclosure Report, or “FDR.” ECF No. 46, at PageID.1821. He states
that Judge Kobayashi’s FDRs for 2020 through 2023 are not yet publicly available,
and if they were available, he would more readily have obtained information about
her role on IAALS’s board. But even assuming Professor Lawson is correct in his
belief that Judge Kobayashi has not complied with her statutory obligation (that is,
assuming there is not some legitimate reason for a delay in the FDRs becoming
public), it is too speculative to suggest that any delay in filing FDRs has anything
to do with Professor Lawson and his current lawsuit. No reasonable person would
conclude that Judge Kobayashi’s impartiality in this lawsuit should be questioned
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because her FDRs are not yet publicly available. That is especially the case
because Judge Kobayashi’s participation in IAALS was made public in other
ways—for example, Professor Lawson’s own motion attaches IAALS’s 2023
annual report, in which Judge Kobayashi is listed as a board member, see ECF No.
45-7, at PageID.1807.
For the foregoing reasons, I conclude that Judge Kobayashi’s membership
on IAALS’s board, and her travel to IAALS board meetings in Colorado, do not
afford a valid basis for her recusal from this case.
B. Judge Kobayashi’s Associations with UH and WSRSL
Professor Lawson’s motion next argues that recusal is warranted because of
Judge Kobayashi’s more general associations with UH and WSRSL. In particular,
the motion notes:
• Judge Kobayashi attended WSRSL’s 2024 commencement ceremony,
“appeared in full academic regalia,” and “was treated by Defendants
as an honored guest and dignitary,” ECF No. 45, at PageID.1697; and
• Judge Kobayashi attended UH and WSRSL as a student and taught at
WSRSL as an adjunct professor several decades ago, and certain
potential witnesses in the pending case were classmates or colleagues
of hers.
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To begin with, I conclude that Judge Kobayashi’s attendance at WSRSL’s
2024 commencement ceremony is not a valid basis for her recusal.2 In these
circumstances, there is nothing unusual—certainly nothing the rules of recusal
would seek to discourage—about a judge attending the commencement ceremony
of the law school within her federal district. Nor is there anything unusual or
problematic about the law school recognizing the presence of that judge. Cf. In re
Complaint of Jud. Misconduct, 816 F.3d at 1267-68 (explaining that “the receipt of
alumni awards do[es] not create the appearance of impropriety” for a judge
presiding over a case in which the university is a defendant).
Turn now to the fact that Judge Kobayashi, several decades ago, attended
UH and WSRSL and taught as an adjunct professor at WSRSL. Here, Professor
Lawson clarifies that it is not the fact of these associations, but rather the fact that
they were not disclosed to him that supports his request for recusal. See ECF No.
45, at PageID.1698 (“Plaintiff’s concern is not that Judge Kobayashi is a UH and
WSRSL alumna, but that she failed to disclose that information while presiding
over a case where UH and the Dean of the WSRSL are named defendants.”); see
also ECF No. 45-1, at PageID.1720 (Lawson Decl. ¶ 10) (similar).
2 I also attended this ceremony, and the law school recognized the fact that I
was there. My attendance does not call into question my impartiality in this
matter, and no reasonable person would think otherwise.
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Professor Lawson complains that Judge Kobayashi’s readily accessible
judicial biographies do not mention that she attended UH and WSRSL. But the
explanation for that omission is evident: Judge Kobayashi did not graduate from
either institution. As Professor Lawson himself concedes, Judge Kobayashi
obtained her undergraduate degree from Wellesley College and her law degree
from the Boston College School of Law. ECF No. 45, at PageID.1709. She
attended UH for two years but did not receive a degree (because she transferred to
Wellesley College). Id. And she merely attended WSRSL as a visiting student.
Id. It is hardly surprising that a judge—or, really, anyone—would disclose the
schools from which they graduated but not necessarily schools they attended but
from which they did not obtain a degree. An omission of that sort would not cause
a reasonable person to suspect that the information is being improperly hidden. In
any event, Professor Lawson’s own submission makes clear that Judge Kobayashi
did not endeavor to conceal this information: she accurately disclosed all of it in
her Senate confirmation materials in 2010. Id. Professor Lawson complains that
these Senate documents were difficult to peruse because they are not available in a
text-searchable format. Id. But surely the format of a PDF is not enough to
require a judge to recuse herself from a case.3
3 Nor is Judge Kobayashi’s recusal warranted by the fact that she might have
shared a college or law school campus, several decades ago, with individuals who
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Professor Lawson appears to resist this conclusion, arguing that United
States v. Hubbard, Crim. No. 12-01133, 2022 WL 281548 (D. Haw. Jan. 31,
2022), supports his position that recusal is warranted where university associations
are not disclosed. In Hubbard, Judge Gillmor resolved a motion to recuse Judge
Kobayashi filed by a defendant in a criminal case in which UH was a fraud victim.
Judge Gillmor considered the defendant’s argument that “Judge Kobayashi
‘concealed’ that she had been a Professor” at UH and “that she had relatives who
attended” UH. Id. at *2. Judge Gillmor rejected the factual premise of the
argument, finding that Judge Kobayashi “never concealed that she previously had
taught” at UH, as it was included in her biographies on both the Federal Judicial
Center and the District of Hawaiʻi websites. Id. Pointing to this analysis in
Hubbard, Professor Lawson argues that his motion should be granted because
neither of these websites reflect Judge Kobayashi’s attendance at UH and WSRSL,
which he suggests is evidence of concealment.
might testify in Professor Lawson’s case. Even if one were to assume that Judge
Kobayashi must have once been friends with some of these witnesses because they
shared a campus as classmates or colleagues, a friendship several decades in the
past does not come close to offering a valid basis for recusal. See ABA Formal
Op. 488 (recognizing that when “the relationship between the judge and a party or
lawyer” has “changed over time” or “ended sufficiently far in the past,” then “it is
not a current concern when viewed objectively”). Indeed, even present friendships
do not necessarily require recusal: “Judicial ethics authorities agree that judges
need not disqualify themselves in many cases in which a party or lawyer is a
friend.” Id.
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Professor Lawson’s reliance on Hubbard is misplaced. Judge Gillmor did
not endorse the notion that recusal is warranted when a judge declines to disclose
her associations with a university. Judge Gillmor considered the allegations of
concealment only because they were offered as good cause for the defendant’s
tardy filing of his recusal motion. The defendant in Hubbard filed his motion more
than three years after judgment had been entered and more than nine years after the
proceedings commenced. Id. at *2. Finding that the information on which the
motion relied had been public that whole time, Judge Gillmor concluded there was
no good cause for the untimely filing. Id. at *2-3. This analysis might be taken to
imply that if associational information is not public, an otherwise untimely recusal
motion might be excused. But it does not mean that a lack of disclosure itself
supports recusal.
Furthermore, Hubbard persuasively explains why Judge Kobayashi’s two-
year stint as an adjunct professor does not support her recusal. “[P]rior service as
an adjunct . . . do[es] not create the appearance of impropriety.” In re Complaint
of Jud. Misconduct, 816 F.3d at 1267-68. And as Judge Gillmor explained, the fact
that Judge Kobayashi taught at UH has long been public. Hubbard, 2022 WL
281548, at *2.
It is true, as Professor Lawson points out, see ECF No. 45, at PageID.1704,
that Comment 5 to Rule 2.11 of the ABA Model Code of Judicial Conduct
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provides that a judge “should disclose on the record information that the judge
believes the parties or their lawyers might reasonably consider relevant to a
possible motion for disqualification, even if the judge believes there is no basis for
disqualification.” But it is also true that Comment 5 employs the hortatory
“should,” rather than the mandatory “shall” that appears in the text of Rule 2.11
itself. See, e.g., Rule 2.11(A) (“A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned . . . .”
(emphasis added)). The use of “should” in Comment 5 indicates that the
recommendation is “permissive rather than mandatory.” United States v. Cortez-
Rivera, 454 F.3d 1038, 1040-41 (9th Cir. 2006).
As a general matter, then, a judge may decline to volunteer information
about her associations, in some cases, without running afoul of the ABA Model
Code of Judicial Conduct. Put simply, the assignment of a judge is not like the
selection of a juror: “A litigant cannot require an unwilling judge to disclose facts
and opinions; there is no procedure corresponding to voir dire.” John Leubsdorf,
Theories of Judging and Judge Disqualification, 62 N.Y.U. L. Rev. 237, 242
(1987).
The upshot is that a “reasonable person”—that is, a person who is not
“hypersensitive or unduly suspicious, but rather is a well-informed, thoughtful
observer,” Holland, 519 F.3d at 913 (internal quotation marks omitted)—generally
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would not question a judge’s impartiality merely because the judge has made a
discretionary decision not to disclose her associations directly to a litigant. To put
a finer point on it, a reasonable person would not question Judge Kobayashi’s
impartiality toward Professor Lawson merely because she did not make
discretionary disclosures to him about her brief stint as an adjunct professor or
about her time as a student at UH and WSRSL decades ago.
In sum, Judge Kobayashi’s associations with UH and WSRSL do not require
her recusal, either on their own or considered together with Judge Kobayashi’s
professional association with Dean Nelson. And any failure to disclose her general
associations with UH and WSRSL similarly do not provide a valid basis for
recusal. Professor Lawson’s recusal motion is, therefore, without merit.
C. Three Final Matters
There are three remaining matters to address. First, in his supplemental
submission, Professor Lawson suggests that Jim On—who was previously a
counsel of record in this case—might have “abruptly terminated his employment
with UH’s Office of General Counsel” because of Professor Lawson’s recusal
motion. ECF No. 46, at PageID.1820. But it requires too far of a speculative leap
to accept the conclusion Professor Lawson advocates. It bears mentioning, one
final time, that a “reasonable person” for recusal purposes is “not someone who is
hypersensitive or unduly suspicious, but rather is a well-informed, thoughtful
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observer.” Holland, 519 F.3d at 913 (internal quotation marks omitted). Professor
Lawson has not offered any valid reason for a well-informed, thoughtful observer
to infer that On’s actions support Professor Lawson’s motion in any way.
Second, Professor Lawson appears to suggest that Judge Kobayashi’s
decision to deny his motion for a temporary restraining order supports his recusal
motion. See ECF No. 45, at PageID.1707-08. This suggestion is meritless. It is
well-established that “alleged bias must usually stem from an extrajudicial source.”
Pesnell, 543 F.3d at 1044. “Almost invariably,” judicial rulings are “proper
grounds for appeal, not for recusal.” Liteky v. United States, 510 U.S. 540, 554-56
(1994). Judge Kobayashi’s ruling in this case could explain why Professor Lawson
(who has recently renewed his motion for a temporary restraining order) might
wish to have his case reassigned to a different judge, but it does not afford a basis
for Judge Kobayashi’s recusal.
Third and finally, Professor Lawson has filed a “Request for Clarification.”
ECF No. 49. He points out that under Section 144, a recusal motion must be
assigned to a new judge, and the originally assigned judge must “proceed no
further” while awaiting the resolution of the motion. Id. at PageID.2018 (quoting
Sibla, 624 F.2d at 867 (emphasis omitted)). Yet on June 3, 2024, Judge Kobayashi
issued an Entering Order in which she provided the parties notice of her
inclinations as to certain pending motions. ECF No. 48 (the “June 3 Order”).
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Contending that Section 144 precludes even non-substantive docket entries,
Professor Lawson asks for “clarification as [to] why Judge Kobayashi continues to
issue orders in this case while the Motion for Recusal is pending.” ECF No. 49, at
PageID.2018. And he argues that the June 3 Order is further evidence of Judge
Kobayashi’s bias against him.
These arguments also lack merit. The obvious purpose of the June 3 Order
was to provide the parties with guidance about fast-approaching dates and time-
sensitive deadlines that remain on the calendar—just days before, Professor
Lawson had filed an amended complaint, a motion for a temporary restraining
order, a request for a preliminary injunction, and this motion for recusal. See ECF
Nos. 43 to 45. The June 3 Order made clear that Judge Kobayashi would “issue no
substantive rulings on the motions in this case until the Motion for Recusal is ruled
upon.” ECF No. 48. No reasonable person would view this guidance as evidence
of bias.
CONCLUSION
For the foregoing reasons, Professor Lawson’s motion to recuse Judge
Kobayashi from his case is DENIED. Furthermore, the Request for Clarification is
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DENIED, and in light of this order, Professor Lawson’s Motion for Expedited
Consideration on the Motion to Recuse is DENIED AS MOOT.
IT IS SO ORDERED.
DATED: June 10, 2024, at Honolulu, Hawai‘i.
Civil No. 24-00172 LEK-RT, Kenneth L. Lawson v. University of Hawai‘i, et al.; ORDER DENYING
MOTION FOR RECUSAL OF DISTRICT COURT JUDGE PURSUANT TO 28 U.S.C. §§ 144 & 455
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