THE COURT: So your argument is that if there is a reversal and a remand and the judge has already expressed views on points of law and the persuasiveness of evidence as presented, that that judge cannot fairly address matters that require repetition in a retrial? Is that your argument?
MR. GRANATH: No, Your Honor.
THE COURT: Well, it's hard for me to see how that's not your argument, because trial judges routinely retry cases that they have tried before and there's error found, and they do it all over again. So what is your argument?
MR. GRANATH: My point is only that the system randomly assigns judges, and all parties can now go through the process with Judge Silver knowing that they have a fresh judge, and that appearance has value. And that's a factor that should outweigh any gains in efficiency or any losses in efficiency.
THE COURT: Is there any dispute that as burdensome as it is, there is great efficiency in having the same judge address the litigation involving the exact same transaction and the same parties, although it will now involve another party as well?
MR. GRANATH: That's correct, Your Honor. And I think the simple answer is of course there's going to be some efficiency gains but there's always going to be new issues that are addressed in the case, and there already are new issues pending. So I don't know that there's a net gain. Obviously there's some gain.
THE COURT: You know, Mr. Granath, of course it is the duty of every judge at all times, in every case, to consider whether the judge has a bias or prejudice. And if the judge has a bias or prejudice, it is the duty of the judge to recuse then regardless of the consequences. So I have examined this with that in mind. And I have gone back through this case, and your argument, apparently what you argued in the Court of Appeals, too, is that I made numerous rulings against your client and expressed them strongly and therefore, it would be, although you on the one hand say I'm not biased and prejudiced, it would have the appearance of bias and prejudice and I should not transfer. That's how I read what you said. And having gone back, I made
a lot of rulings for both sides in this case, did I not?
MR. GRANATH: You did, Your Honor.
THE COURT: So for example, I granted your motion to consolidate the two cases. I granted your motion dismissing the plaintiff's removed state court case as entirely pre-empted by federal law, threw the whole case out at your request. I did grant the airline's motion to dismiss for lack of jurisdiction. That was their motion, but it had collateral benefits to your client in the litigation as well. We hotly litigated the question of whether you had a right to jury trial. It was a close question and I ruled in your favor on that.
MR. GRANATH: That's correct.
THE COURT: Not because I was ruling for you but because I thought, as in everything, that was the strongest weight of authority. And I also granted your motion for judgment as a matter on the pleadings on the claim for restitution of union dues and fees, eliminating that entirely. On the motions in limine, there were many -- by the way, there were too many motions in limine -- and those were a mixed bag. You won some; you lost some. I denied the West Pilots' motion for additional discovery. I struck their supplemental reply. And it came to what probably is one of the most important aspects of the entire litigation, and that is, settling what jury instruction to give on DFR in these circumstances. I rejected entirely West Pilots' proposal. And the instruction I gave, although it wasn't exactly what you proposed, it was a lot closer to your instruction with one change than theirs. So if adverse rulings are enough to give rise to an
appearance of impartiality and unfairness, I haven't been very efficient at being biased, have I?
MR. GRANATH: I take your point, Your Honor.
THE COURT: Now, what about the point that the fundamental principle of disqualifications that neither
disqualification or bias and prejudice can be shown from adverse rulings? What about that point of law, Mr. Granath.
MR. GRANATH: I understand. I'm familiar with the juris prudence, Your Honor. I think our argument was a little different in the Ninth Circuit. I may have to respectfully --
THE COURT: I haven't read your briefs in the Ninth Circuit, so is it different from what you argued here?
MR. GRANATH: I think so, Your Honor. But I really don't have anything to add to that. My only point directed to the motion that's on the table is all doubts should be resolved in favor of the full appearance of justice. We have a randomly assigned judge. There's no quarrel there.
THE COURT: That's not the standard on transfer. The standard on transfer is what is stated in Rule 41.2.
Now, of course, as I said, in any case, if the judge is actually biased and prejudiced it is the judge's duty to
examine that and to recuse. Go ahead. I want to hear whatever you have to say in support of that argument.
MR. GRANATH: It's true that that's the standard, Your Honor, but also it's true that all parties are entitled to due process and fairness under the constitution. My point is that we have a judge that it was randomly assigned to and there's no issue on that side with that judge. As Mr. -- as counsel has said, Judge Silver can do it. And it seems to me if there's any -- I understand the Court disagrees with our position. I respect that.
THE COURT: It's not a matter of subjectivity. We have court rules, and the court rules here lay out the criteria to be followed, the factors to be considered, and that's what matters. Now, it comes back to the question of whether I'm biased or prejudiced or whether there is an appearance of bias and prejudice. I'm asking you, the fact that I have engaged this case thoroughly, I viewed this case from the point of view
of everyone's interest as one of utmost importance --
MR. GRANATH: Yes, sir.
THE COURT: And I invested great effort in processing it expeditiously and fairly, and I labored through the numerous issues that were presented and I reached decisions. And as we have just summarized, the other -- this is a battle in which both sides had a lot of ships sunk. How is it that the Court's engagement of counsel with vigorous dialogue and reaching conclusions, sometimes with a strong point of view, even gets close to bias or prejudice that would preclude what is otherwise an appropriate transfer? I'm not saying that the pending requirement is met. But if it were, how is it that that would preclude an otherwise appropriate transfer under Rule 41.2?
MR. GRANATH: Maybe not under the rule, Your Honor,
Expecting them to negotiate and have their lawyer fight a legal battle at the same time...how dare you?
