Opposition Brief — Miller v. Person

Jn the Supreme Court of the United States

OCTOBER TERM, 1988

GLEN F. MILLER, PETITIONER

V.

Bossy L. PERSGN AND UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

JAMES P. TURNER ‘

Acting Assistant Attorney General

DAVID K. FLYNN

MIRIAM R. EISENSTEIN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

4

2

QUESTIONS PRESENTED

1. Whether petitioner’s contempt conviction should be

reversed on the ground thai the district court took judicial

notice of the injunction that petitioner was charged with

having violated and failed to instruct the jury that it need

not take the existence of the order as proved.

2. Whether the court of appeals erred in holding that

the case had properly been prosecuted by the United States

Attorney with the assistance of the attorney for the civil

plaintiffs who had initiated the contempt proceedings.

3. Whether petitioner was entitled to have all blacks

excused from the jury “for cause” because the criminal

contempt charges against petitioner alleged that he had

violated a decree that enjoined interference with the exer-

cise of rights by all blacks in the State.

(1)

TABLE OF CONTENTS

Page

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Sena Ss SP ea dbs odd eeeew a ou l

OE LS ae os 6

Es EEE gh a ee 13

TABLE OF AUTHORITIES

Cases:

Batson v. Kentucky, 476 U.S. 79 (1986)... 222. 12

Cement Antitrust Litigation, In re, 688 F.2d 1297 (9th

Cir. 1982), aff'd mem., 459 U.S. 1191 (1983) ......... 12

Christiansen v. National Savings & Trust Co., 683 F.2d

eee kad ee dea naenveseve wes 13

City of Houston, In re, 745 F.2d 925 (Sth Cir. 1984) ..... 12

Gompers v. Buck’s Stove & Range Co., 221 U.S. 418

rere arc e rea sha as oe dees eawedseksessecse 11

Plechner v. Widener College, Inc., 569 F.2d 1250 (3d

ESL AGU CuLU Repu uh'di dco dd ne p beess es suse 13

Polo Fashions, Inc. v. Stock Buyers Int'l Inc., 760 F.2d

698 (1985), cert denied, 482 U.S. 905 (1987) .......... 10

New Mexico Natural Gas Antitrust Litigation, In re,

Gio 20 794 (ith Civ. 1960)... 2... eee eeee = 13

Smith v. Phillips, 455 U.S. 209 (1982) .........0..0..... 11, 12

United States v. Alabama, 828 F.2d 1532 (llth Cir.

1987), cert. denied, No. 87-1200 (June 20, 1988) ...... 12

United States v. Frady, 456 U.S. 152 (1982) ............ s

United States v. Loucas, 629 F.2d 989 (4th Cir.), cert.

Gented, 450 U.S. 1030 (1980)... cc cee ee cue eee 12

United States v. Mentz, 840 F.2d 315 (6th Cir. 1988) .... Ss

Virginia Elec. & Power Co., In re, §39 F.2d 357 (4th Cir.

re nah oackasakes seas 12

Young v. United States ex rel. Vuitton Et Fils S.A.,

No. 85-1329 (May 26, 1987) ....... evererr eh

(Il)

IV

Statutes and rules: Page

U.S. Const. Amend. V (Due Process Clause) .........-- 10

N.C. Gen. Stat. (1987):

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§ 14-28B.2O(DM 1)... eee eee eee eee ee ene 2

§ 14-28B.2O(DM2) . 2. ee cece eee cence 2

RE as cs cbcp eechansdee sn saneen nae 4 2

TOE GND Sadak ndaceccccscedasisennsadas es 12

, Pik Tomy... er rer. 12

it I, BEER Cc nnccacsccatcndaesneessagenes 2

Fed. R. Crim. P.:

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gn tb nes Saad atesesseesaheesew en 8

Fed. R. Evid.:

OS Tita Sl eer ry Peewee eer ey st 4

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-792

GLEN F. MILLER, PETITIONER

Vv.

BosBy L. PERSON AND UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAcS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 4a-22a)

is reported at 854 F.2d 656.

JURISDICTION

The judgment of the court of appeals was entered on

August 16, 1988 (Pet. App. 4a). The court of appeals

denied a petition for rehearing on September 13, 1988

(Pet. App. 23a). The petition for a writ of certiorari was

filed on November 9, 1988. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for

the Eastern District of North Carolina, petitioner was con-

victed on two counts of committing criminal contempt, in

(1)

2

violation of 18 U.S.C. 401(3), by disobeying a consent

decree that prohibited him from operating a paramilitary

organization and from committing other acts contrary to

the laws of North Carolina. Pet. App. 2a, 8a. Petitioner

was sentenced to three years’ probation on the first count

and six months’ probation on the second count. /bid. The

court of appeals affirmed. /d. at 22a.

1. In June 1984, respondent Bobby Person filed a civil

rights action, naming as defendants the Carolina Knights

of the Ku Klux Klan, petitioner (who was the leader of the

Klan), and other individuals associated with the Klan. Pet.

App. 5a. The complaint alleged that the defendants had

committed violent and intimidating acts against blacks in

North Carolina “with the intent of depriving them * * * of

the equal protection of the laws, and of otherwise

violating their rights under federal and state law.” C.A.

App. 2. Pursuant to Fed. R. Civ. P. 23(b)(2), the district

court ultimately certified a plaintiff class consisting of “all

black citizens in the State of North Carolina who seek to

exercise their state and federal rights free from in-

terference by the defendants.” Pet. App. Sa.

In January 1985, the parties entered into an agreement,

which the parties authorized the court to enter as a consent

decree, prohibiting the defendants from “operat[ing] a

paramilitary organization” and from committing certain

other related acts prohibited by North Carolina law.' Pet.

App. Sa-6a. Petitioner signed the agreement. C.A. App.

33-34. On January 18, 1985, the district court held a

' To simplify, the three provisions of North Carolina law identified

in the agreement, N.C. Gen. Stat. §§ 14-10, 14-288 .20(b)(1),

1 4-288.20(b)(2) (1987), concern assembling to practice military exer-

cises, teaching the use of violence for use in furtherance of a civil

disorder, and assembling for training in the use of violence for fur-

thering a civil disorder.

3

hearing, which petitioner attended; the same day the court

entered an order that embodied the agreement in a consent

decree (Pet. App. 6a) and directed Person to give notice to

the absent members of the plaintiff class (C.A. App.

39-40). After constructive notice was effected (id. at

42-69), the court substituted the Klan’s successor organiza-

tion, the White Patriot Party (WPP), for the Klan and

made its decree final on September 17, 1985 (id. at 70-72).

2. On April 22, 1986, Person’s counsel, Morris Dees,

filed a motion asking the district court to hold petitioner

and the WPP in criminal contempt. The supporting com-

plaint, as later amended, alleged that petitioner and the

WPP were continuing to operate a paramilitary organiza-

tion and were violating two of the North Carolina statutes

referred to in the decree. Pet. App. 6a; C.A. App. 115,

177, 228, 261. In response, the court ordered petitioner to

show cause why he should not be held in contempt. Pet.

App. 7a.

For approximately two months, Dees acted as the prose-

cutor of the contempt proceeding without objection by

petitioner. On June 12, 1986, however, petitioner moved

to disqualify Dees on the ground that Dees was likely to be

a material witness. Pet. App. 7a. The district court stated

that Dees was not likely to be a witness (C.A. App. 193),

but in order to avoid even the appearance of impropriety,

the court ordered “that the criminal prosecution of this ac-

tion shall be under the direct supervision and control of

the United States Attorney for this district. Plaintiffs’

counsel may assist the United States Attorney prior to and

during the course of the trial * * *.” /bid.

At the beginning of jury selection, the court described

the case to the venire so that the prospective jurors could

answer questions about their connection with the case and

their ability to render an unbiased judgment. The court

specifically recounted the existence and contents of the

4

consent decree. C.A. App. 522-523.? Subsequently, peti-

tioner challenged all of the black persons on the venire for

cause, contending that they were members of the class

benefited by the order that petitioner was charged with

having violated. Jd. at 573, 585, 617. The court denied the

challenges for cause. Petitioner used his peremptory

challenges, however, to rid the jury of all but one black

person.

At the close of the government’s case, petitioner moved

for a judgment of acquittal. Petitioner alleged as one

ground that no evidence had been presented showing the

existence of the court order that formed the basis of the

prosecution C.A. App. 1107-1108. The court rejected

that ground, stating (id. at 1108): “I think the court order

is a part of the proceeding itself. I don’t deem it necessary

to introduce evidence of that.” Petitioner was found to

have operated a paramilitary organization and to have

violated two provisions of North Carolina law as charged.

Pet. App. 8a.

3. The court of appeals affirmed. Pet. App. la-22a.

Petitioner argued that the consent decree had never been

placed in evidence and that, even if the district court’s

statement (quoted above) is construed as taking judicial

notice of the order, that notice was improper because no

one had requested it. Jd. at 9a. The court of appeals con-

cluded, to the contrary, that the district court had in fact

taken judicial notice of its order, “by this means * * *

lay[ing} it before the jury for consideration” (ibid.), and

that Fed. R. Evid. 201 permitted the court to take judicial

notice of the order sua sponte (Pet. App. 9a).?

2 Contrary to petitioner’s suggestion (Pet. 22-23), the court did not

tell the venire about the existence of a beneficiary class or about the

class-action nature of the original suit. See C.A. App. 585.

’ In his reply brief in the court of appeals, petitioner argued that the

government failed to prove that he had actual notice of the decree.

a

The court of appeals also rejected petitioner’s conten-

tion that Dees’s role in prosecuting the contempt was ex-

cessive under this Court’s decision in Young v. United

States ex rel. Vuitton Et Fils §.A., No. 85-1329 (May 26,

1987).* Rather than conducting a quantitative comparison

of the trial activities of the government prosecutor and

Dees, as petitioner suggested, the court held (Pet. App.

l4a-15a) that, under Young, the proper inquiry was

whether the disinterested, government prosecutor had

control over critical prosecutorial decisions.’ The court

determined that petitioner had nog shown that he had been

prejudiced by Dees’s activities during the short period

before the United States Attorney took over the prosecu-

tion. Jd. at 16a. The court also concluded that there was

no indication that the United States Attorney, once he

came into the case, ever relinquished control over any

critical prosecutorial decisions. /bid.

Finally, the court of appealsrejected petitioner’s argu-

ment that the district court erred in not excluding all blacks

The court of appeals did not comment on that contention. Petitioner

has never denied either the existence of the order or his notice of it.

*In Young, which was decided after the verdict in this case, this

Court held that counsel for a party who is the beneficiary of a court

order may not be placed in charge of prosecuting a contempt action

that alleges a violation of that order. The Court explained that permit-

ting such an interested party to prosecute a contempt creates “oppor-

funities for conflicts to arise” and presents “at least the appearance of

impropriety.” Slip op. 18. This Court added, however, that private

counsel’s unique familiarity with the case could be put tO use in

assisting the disinterested prosecutor. /d. at 18 n.17.

> Such decisions, the court of appeals said (Pet. App. 15a), included

decisions about what targets to pursue, what methods of investigation

(o use, What information to seek or use, what offenses and what per-

sons to charge, whether to enter into a plea bargain, and whether im-

munity should be granted. See also Young, slip op. 17.

6

from the jury for cause. Pet. App. 17a. The court of ap-

peals reasoned that challenges for cause are generally

limited to instances of actual bias and that this case did not

involve one of the “extreme situations” where it is ap-

propriate to invoke the doctrine of implied bias. /bid. The

court explained that the criminal contempt proceeding was

“not simply the continuation of the private parties’ civil

litigation,” but was “a proceeding between the public and

the defendant” brought to vindicate the court’s authority.

Ibid. The plaintiff class that is the beneficiary of the con-

sent decree, the court added, had no “pecuniary or other

unique benefit to be gained” from this criminal pro-

ceeding, and the decree would remain in force regardless

of the outcome of this prosecution. Jd. at 17a-18a.°®

ARGUMENT

1. Petitioner challenges on two grounds the court of

appeals’ conclusion that the existence of the consent decree

was properly established. He first argues (Pet. 10-12) that

the district court did not take judicial notice of the order in

a legally adequate manner. That claim, however, was

neither raised nor considered below. In the court of ap-

peals, petitioner did not challenge the formal adequacy of

the district court’s taking judicial notice of the consent

decree. Rather, corceding that the district court “ap-

parently took judicial notice of its order” (Br. 14), peti-

tioner argued that the order could not be judicially noticed

but had to be proved, and he suggested that the court’s act

of taking judicial notice was ineffective because the

government had nevei requested that notice be taken. In

* In addition to the three challenges described above, the court of

appeals rejected petitioner’s several other contentions as well. Pet.

App. 9a-13a, 18a-22a.

any event, petitioner’s claim of inadequate judicial notice

is incorrect On the merits: the district court clearly iden-

tified the subject of the judicial notice, the consent decree;

indeed, it informed the venire of the decree’s existence and

contents during voir dire (C.A. App. 522-523) and gave

the jury a copy of the order to take to the jury room for

deliberations (C.A. App. 1416-1418).’

Petitioner also contends (Pet. 12-13) that, if the order

was properly noticed, the district court violated Fed. R.

Evid. 201(g) by failing to instruct the jury that it may but

need not take the existence of the order as proved. Peti-

tioner raised that point only in a footnote in his reply brief

in the court appeals (at 3 n.1), and the court of appeals did

not address the issue.* In any event, the district court’s

failure to give the Rule 201(g) instruction would not justify

reversal of petitioner’s convictions. Petitioner neither

asked the district court to give such an instruction nor

made a contemporaneous objection to the charge given.

See Fed. R. Crim. P. 30 (“No party may assign as error

any portion of the charge or omission therefrom unless

that party objects thereto before the jury retires to con-

’ Petitioner adds to his claim regarding the adequacy of the judicial

notice a suggestion (Pet. 10 n.8) that there was insufficient evidence

that petitioner had knowledge of the decree. That claim is not within

any of the questions presented (Pet. i); in particular, it is not within

the judicial notice question. Moreover, petitioner did not make the

argument until his reply brief in the court of appeals (at 3-4), and the

court of appeals did not separately address it. The court of appeals did

conclude that there was sufficient evidence to support the jury’s find-

ing that petitioner intentionally violated the decree (Pet. App.

|2a-13a), which implies that he had knowledge of the decree. We note,

too, that petitioner signed the agreement that was entered as a consent

decree. C.A. App. 34.

* Because the court of appeals in this case did not rule on any jury

instruction question, petitioner’s suggestion of an intercircuit conflict

on the issue (Pet. 9) is incorrect.

sider its verdict * * *.”). And the failure to give a Rule

201(g) instruction did not constitute plain error within the

meaning of Fed. R. Crim. P. 52(b), for there was no

miscarriage of justice here. Petitioner has never disputed

that the consent decree existed (and was the document

given to the jury); and the jury could not possibly have

found that the decree did not exist after the court inter-

preted the decree, explained to the jury what it must find

in order to conclude that the decree had been violated, and

permitted the jury to take the decree to the jury room. See,

e.g., United States v. Frady, 456 U.S. 152 (1982).?

2. Petitioner next contends (Pet. 14-21) that the court

of appeals’ ruling is contrary to this Court’s decision in

Young v. United States ex rel. Vuitton Et Fils S.A., supra.

That contention is meritless. The court of appeals in no

way departed from Young’s holding that an attorney for a

beneficiary of a court order should not be appointed as the

sole or principal prosecutor in a contempt prosecution for

violating the order. Rather, the court correctly determined

* The decision of the court of appeals does not conflict with United

States v. Mentz, 840 F.2d 315 (6th Cir. 1988). First, as we have ex-

plained, the court of appeals in the present case did not address either

of the two issues on which petitioner cites Mentz—the formal ade-

quacy of judicial notice and the validity of a court’s instruction on an

essential element of an offense. In any event, on the first question,

Mentz did not in fact rule on the formal adequacy of a district court’s

attempt to take judicial notice, but found that there had not been any

such attempt (/d. at 322); moreover, the district court in the present

case identified “the fact noticed and articulate[d] its justification”

(Pet. 11), as Mentz notes a trial court should do. On the Rule 201(g)

question, Mentz involved a question of harmless error, because the de-

fendant objected to the jury instruction in a timely manner; the pres-

ent case involves a question of plain error, because petitioner did not

make a timely objection to the court’s failure to give the instruction in

question.

9

(Pet. App. 13a-17a) that respondent Person’s lawyer,

Dees, did no more than assist the disinterested government

attorney in the prosecution, a practice that Young ap-

proved. Slip op. 18 n.17.

The court of appeals correctly declined to evaluate Dees’s

role in the present prosecution by a quantitative assessment

of how much of the trial work Dees performed: under

Young, the proper inquiry was whether Dees was subject to

the government attorney’s control with regard to all critical

decisions. See Young, slip op. 18 n.17 (private counsel’s

“familiarity [with the charged conduct] may be put to use in

assisting a disinterested prosecutor in pursuing the con-

tempt action, but cannot justify permitting counsel for the

private party to be in control of the prosecution”). With re-

spect to the period before the United States Attorney en-

tered the case, the court of appeals determined (Pet. App.

16a) that Dees made no final and irrevocable decisions on

matters requiring prosecutorial discretion; the court noted

that petitioner did “not actually point to any specific prej-

udice attributable to the interval of Dees’ sole control”

(ibid.). When the United States Attorney entered the pro-

ceedings, he filed a new contempt complaint to reinitiate

the prosecution (id. at 7a), and he entered under an order of

the district court that he exercise “direct supervision and

control” over the prosecution (id. at 7a, 16a). There was no

reason, the court of appeals concluded (id. at 16a), to

doubt that the United States Attorney actually maintained

the control that the district court order required. In addi-

tion to noting the “presumption of regularity” (/bid.), the

court of appeals pointed out that all of the formal indicia of

control suggested as much, and the record contained no

evidence suggesting the contrary.'° a

'0 Petitioner’s descriptions of the tasks performed by Dees (Pet. 16,

18) in no way undermine the court of appeals’ conclusion that Dees

was not in control.

10

The court of appeals’ determination that government

counsel retained control over the prosecution—so that

petitioner was not subject to a prosecution directed by an

interested person —correctly applies the Young decision to

the record in this case. That factbound determination

raises no general issues concerning the proper interpreta-

tion of Young; nor, contrary to petitioner’s allegation

(Pet. 19), does it create any conflict among the circuits.!!

In addition, the peculiar circumstances presented here, in-

volving the initiation of a contempt prosecution by private

counsel, are not likely to recur. The contempt prosecution

in this case took place prior to this Court’s decision in

Young. As the court of appeals stated (Pet. App.

16a-17a), in the future district courts will no doubt “follow

the rule * * * derived from Young and make initial

reference to the United States Attorney’s Office before

authorizing any participation * * * by private counsel.”

3. Petitioner contends finally (Pet. 21-24) that, under

the Fifth Amendment Due Process Clause, he was entitled

to have the court strike all of the black potential jurors for

cause. His theory is that bias should have been imputed to

all of those jurors as a matter of law, even if there was no

evidence of actual bias on their part, because all were

“class beneficiaries” of the consent decree whose violation

Was at issue in the contempt proceeding. The court of ap-

'' Petitioner points to the Sixth Circuit’s decision in Polo Fashions,

Inc. v. Stock Buyers Int'l, Inc. , 760 F.2d 698 705 (1985), cert. denied,

482 U.S. 905 (1987). The Sixth Circuit there held that counsel for an

interested party may not act as “sole or primary counsel.” Although

the Sixth Circuit did not define “primary counsel,” it presumably

meant the term to refer to the attorney who controls the prosecution,

not the attorney who examines the largest number of witness. In any

event, Polo Fashions was decided prior to this Court’s decision in

Young.

1]

peals’ rejection of that contention is correct and does not

warrant this Court’s review. Pet. App. 17a-18a.

Petitioner cites no decision finding implied bias in cir-

cumstances like those presented in this case. Nor is there

any reason to believe that the peculiar circumstances here

present any recurring problem that should be addressed by

this Court. In any event, this is not one of those “extreme

situations” (Smith v. Phillips, 455 U.S. 209, 222 (1982)

(O’Connor, J., concurring)) in which the law might

justifiably impute bias even where no actual bias could be

found.

Any personal interest the black venirepersons might

have had in the contempt prosecution was highly at-

tenuated. Although they were members of the plaintiff

class in the underlying civil suit, “contempt proceedings

arising out of civil litigation ‘are between the public and

the defendant, and are not part of the original cause.’ ”

Young, slip op. 16 (quoting Gompers v. Buck’s Stove &

Range Co., 221 U.S. 418, 445 (1911)). Indeed, it is because

the contempt proceeding is designed to vindicate the

court’s authority, and not to serve the interests of any

private parties, that Young requires a disinterested pros-

ecutor. Moreover, even if in some contempt cases in-

dividual beneficiaries of the underlying court order have a

sufficient personal interest to impute bias to them, it

would not be appropriate to impute such bias to all

members of a large, diffuse class like the class involved in

the present case, including all those persons who have

never been personally subject to unlawful conduct at the

hands of petitioner or his organizations.'? That is especial-

ly so where, as here, a finding of implied bias, by drawing

'2 Petitioner suggests (Pet. 23 n.12) that class members had a

pecuniary interest in the contempt proceeding because they might pur-

sue damages claims by reopening the underlying civil suit 1f the con-

sent decree were breached. But even aside from the speculative nature

12

an express racial line, would exclude all black citizens in

the State. This Court has recognized in other contexts that

“fe}xclusions of black citizens from service as jurors con-

stitutes a primary example of the evil the Fourteenth

Amendment was designed to cure.” Batson v. Kentucky,

476 U.S. 79, 85 (1986).

In these circumstances, there is no justification for

departing from the ordinary practice of requiring proof of

actual bias where a litigant alleges bias as a ground for

striking a potential juror. Smith v. Phillips, 455 U.S. at

215; see also United States v. Loucas, 629 F.2d 989, 992

(4th Cir.), cert. denied, 450 U.S. 1030 (1980).'* The op-

of the suggestion that the contempt proceeding might lead to a reopen-

ing of the original suit (see also Jn re Virginia Elec. & Power Co., 539

F.2d 357,367 (4th Cir. 1976) (“bare expectancy” of damages is not suf-

ficient to require disqualification of judge who is class member in the

Suit)), petitioner overlooks the fact that the civil complaint in the pre-

sent case did not seek damages from petitioner at all and did not seek

damages on behalf of the class from any defendant. C.A. App. 17.

'3 Contrary to petitioner’s suggestion (Pet. 21-22), /m re Cement

Antitrust Litigation, 688 F.2d 1297, 1308-1310 (9th Cir. 1982), atfd

mem., 459 U.S. 1191 (1983), did not involve a judicial disqualification

based on mere party status under 28 U.S.C. 455(b)(5); rather, it in-

volved disqualification under 28 U.S.C. 455(b)(4) based on the finan-

cial interest of the judge’s wife. The class of all black citizens in North

Carolina has no such financial interest in this case.

Indeed, where questions similar to the question presented here have

arisen with respect to judges in civil suits who are technically members

of a beneficiary class, the courts have reached conclusions similar to

that reached by the court of appeals in this case. See, e.g., United

States v. Alabama, 828 F.2d 1532, 1541-1542 (Lith Cir. 1987), cert.

_ denied, No. 87-1200 (June 20, 1988) (that a black judge’s children

were members of the plaintiff class of all blacks who might want to go

tO a State university in the Montgomery area does not require dis-

qualification because the “interest” is in a public matter and is broadly

Shared by all young black Alabamians); /n re City of Houston, 745

F.2d 925 (Sth Cir. 1984) (black judge need not disqualify herself from

13

portunity to ask questions to disclose bias on the part of

potential jurors is adequate to the task of ensuring that de-

fendants like petitioner are tried by an impartial jury. Peti-

tioner was not denied such an opportunity, and there is no

reason to doubt that he was convicted by an impartial jury

in accordance with the requirements of due process.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JAMES P. TURNER

Acting Assistant Attorney General

DAVID K. FLYNN

MIRIAM R. EISENSTEIN

Attorneys

JANUARY 1989

voting rights case, where class consisted of all black and Hispanic

voters); Christiansen v. National Savings & Trust Co., 683 F.2d 520

(D.C. Cir. 1982) Gudges who are federal Blue Cross-Blue Shield par-

ticipants not disqualified from case brought by such participants

where no monetary relief is sought); Jn re New Mexico Natural Gas

Antitrust Litigation, 620 F.2d 794 (10th Cir. 1980) (self-

disqualification by judge as natural gas consumer reversed); Plechner

v. Widener College, Inc., 569 F.2d 1250 (3d Cir. 1977) Gudge need not

disqualify himself because of membership in the American Bar

Association, a party).

US GOVERNMENT PRINTING OFFICE 1389— 251 699 00051