holding that the district court did not err by reassigning the case to another judge without first ruling on the recusal motion and calling this the “functional equivalent of rec- using”
How later courts described this case
- holding that the district court did not err by reassigning the case to another judge without first ruling on the recusal motion and calling this the “functional equivalent of rec- using”
- recognizing that “a litigant’s freedom to hire the lawyer of his choice can be overridden if a court finds that the choice would interfere with the orderly administration of justice”
- explaining “there is a constitutionally based right to counsel of choice” in civil cases that flows from the Fifth Amendment’s due process guarantee
- stating that “[m]andamus is not to be used as a subterfuge to obtain appellate review that is otherwise foreclosed by law.”
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring:
I join Judge Anderson’s persuasive opinion, but I write separately in part to emphasize several matters which may be unique to my perspective on the case as a visitor to the Eleventh Circuit.
I find myself in the sensitive position of casting the deciding vote (at least pending possible reconsideration by the full court) in a dispute which, if not unique to the Eleventh Circuit, at least has an unusually substantial and controversial history in a judicial district of this circuit. The very problem presented by the case before us is certainly not new. Terry Price and his relationship to Judge Clemon have been a continuing issue in the Northern District of Alabama. See Robinson v. Boeing, 79 F.3d 1053 (11th Cir.1996); N.D. Ala. Standing Order (July 12, 1996). With the locally focused nature of the present case in mind, I have some concern about being thought an interloper in a family affair, but, if this is to be my lot, I will do my best to cast my vote under principles of the broadest application.
The first of such principles to present itself is, of course, the availability of the writ of mandamus. All parties agree that to justify issuance of the writ, the cause supporting its issuance must be clear and indisputable. The majority opinion even cites Seventh Circuit authority to this effect. See In re Sandahl, 980 F.2d 1118 (7th Cir.1992). In terms of the present case, I see two potential errors of the district court that might meet this condition: first, mootness, based on Judge Smith’s failure to rescind the order disqualifying Terry Price once a truly random process had assigned a judge other than Judge Clemon, and second, the issue raised by the dissent, Judge demon’s decision to forgo automatic recusal by recourse to its functional equivalent.
The question of mootness may be more difficult than either of my colleagues seems to believe. I do not see this case primarily in terms of “punish[ment]” for an improper conspiracy to “tamper[ ] with the judicial process” (the basis on which the controversy can be said to have survived the selection of a judge other than Judge Clemon). Maj. op. at 951. Just as much, I see it in terms of an inadmissible conjunction of a judge and an attorney who bear to each other a familial relationship within a degree of consanguinity prohibited by 28 U.S.C. § 455 (b). As the case is now presented, the prohibited nature of the relationship of the judge to the attorney no longer exists because a properly random process of selecting a judge has now missed Judge Clemon and eliminated the earlier problem. Nonetheless, it is possible that the motives of the corporate petitioner and its lawyer are sufficiently significant jurisdictionally to avoid the objection of mootness even when the objee- *967 tive basis of the controversy has been removed. While perhaps more significant than acknowledged in my colleagues’ opinions, any possible error with respect to mootness does not in the end present a clear and indisputable right to relief.
The dissent’s case supporting the availability of mandamus rests entirely on the proposition that “Congress intended that recusal under Section 455(b) be automatic, without exception.” Dissent at 973. The dissent argues that there was a clear and automatic requirement on Judge Clemon to recuse himself the moment his nephew filed his appearance. In order to support mandamus, this error of nonrecusal would have to be as clear and as indisputable as if the litigation facing the judge involved the merits of his own mother and the judge in question deliberately and defiantly flouted the requirement of impartiality. At most, of course, the present circumstance involves no suggestion of flagrant bias; in fact, the dissent’s claim of clear and indisputable error rests on an essentially technical reading of the statute. That Judge demon’s failure to “automatically” recuse himself presents something less than a clear and indisputable right to mandamus relief is demonstrated by the arguments advanced by the respondents and relied on by the majority opinion.
The dissent’s contrary analysis does not succeed, in my estimate, in endowing its point of view with a clear and indisputable quality. The dissent supports its thesis of automatic recusal with recourse to legislative history and presumed legislative intent, and expressly deems permissible the practice of forced recusal as a litigation tactic. The dissent asserts that Congress “undoubtedly realized that sophisticated parties would hire a judge’s third-degree relative to force recusal of a judge they did not want,” and that Congress “must ... have recognized that parties could hire a judge’s third-degree relative for the sole purpose of forcing the judge to disqualify himself.” Id. at 971, 974 . Nonetheless, according to the dissent, Congress “accepted this drawback,” in order to prevent “the greater evil” of judges continuing to hear cases argued by their relatives. Id. at 971 .
But the dissent cites nothing strongly persuasive for this understanding of congressional intent. For one, I am not convinced that the legislative history dealing with § 455(a), Dissent at 973-74, demonstrates that Congress anticipated the concoction of schemes to force the disqualification of judges by injecting their relatives into cases as attorneys. Further, there is no evidence to support the idea that Congress anticipated improper machinations in the hiring of attorneys but deliberately chose to prohibit efforts to deal with such unusual circumstances. It seems to me that this may be one of those many circumstances where Congress chose to leave to the courts unusual developments that would severely affect the processes of justice in ways that § 455 could not anticipate. It is also not clear that having a nephew or cousin present a case to a judge is more damaging to the orderly administration of justice than scheming to obtain the services of the judge’s relative to force the judge’s recusal, especially where a party may be seeking to avoid the one African-American judge resident in the district. See Dissent at 975 (arguing that Judge demon’s immediate recusal “would not have disrupted the orderly administration of justice”); cf. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).
Nor am I persuaded by the rather impressive parade of horribles hypothesized by the dissent. Dissent at 977-79. Under any circumstances, I cannot see the approach of the majority opinion leading to *968 an inquiry into a judge’s “ideological bias.” Lawyers brave enough-or rash enough-to demand a re-enactment of a Senate Judiciary Committee confirmation hearing as part of a disqualification dispute would be few and far between. Such a fantastic contingency should not prevent us from appropriately deciding the case before us in the expectation that future disasters can be avoided with common-sense solutions. If judge-shopping of this sort becomes a national pastime, rather than a diversion unique to Birmingham, I am confident that the courts and the Congress between them can deal with the situation.
Additionally, it seems to me that this court’s decision in Robinson argues against the absolutist position taken by the dissent with respect to the operation of § 455. If the recusal of the judge is to be given automatic priority, as the dissent argues, why should this also not be the case if the lawyer seeks to join the litigation in mid-course rather than from the outset? The dissent seeks to deal with this issue by pointing out that the trial judge has discretion to prevent the problem from arising by denying the disqualifying attorney permission to appear. But such an exercise of discretion by the trial judge would seem to defeat the very policy of § 455 as stated in the categorical terms of the dissent.
No doubt the analysis applied by the majority has at least the potential of unjustly burdening Price and his law firm. Every effort must continue to be made to preclude, or at least to ameliorate, this impact. The analysis undertaken by the majority opinion in this respect seems appropriate to this end.