In Re National Store Fixture Co.

DENNIS J. STEWART, Bankruptcy Judge.

I wish to join Judge Pelofsky in his holding that Rule 5002 of the Rules of Bankruptcy Procedure is unconstitutional and unlawful insofar as it goes beyond the disqualification statute, section 455, Title 28, United States Code, in defining situations where the bankruptcy judge, as a matter of law, regardless of the factual context, must, in effect, recuse himself from appointing officers of the bankruptcy estate.

I

The principal effect of the rule betrays its chief vice. That principal effect is to prohibit the bankruptcy court from making judicial factual…