Petition — Davis v. Board of School Commissioners

Supreme Court brief1976

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Brrapre Mat Davis, Epwin Foster,

and James KE. Buskey, et al.,

Petitioners,

Boarp or ScHooL COMMISSIONERS OF

Mosite County, et al.,

Aurrepo G. Parriss, et al.,

Petitioners,

Boarp oF CoMMISSIONERS OF THE

AuaBAMA State Bar, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Micuae. I. Sovern

435 W. 116th Street

New York, New York 10027

Jack GREENBERG

James M. Nasazirt, III

Cuartes STEPHEN RaLston

Eric ScHNAPPER

10 Columbus Circle

Suite 2030

New York, New York 10019

J. E. BuacksHER

Crawford, Blacksher & Kennedy

1407 Davis Avenue

Mobile, Alabama 36603

U. W. Ciemon

Adams, Baker & Clemon

2121 North Eighth Avenue

Birmingham, Alabama 35203

Attorneys for Petitioners

—— - —_-—

ST ems

INDEX

PAGE

TID istincntbininnpnenrncttincinhiniesistisinbisnideniibinieommascniies 1

1. Davis v. Board of School Commissioners ........ 1

2. Parrish v. Board of Bar Commissioners ............ 2

p REA NLA TS a IRR WES sO ETS DT EN aT OOP 2

1. Davis v. Board of School Commissioners .......... 2

2. Parrish v. Board of Bar Commissioners ............ 2

Re a a aL a DITOR 3

Statutory Provisions Involved .0...............eeceeceeeeeeeeees 3

I i 5

A. Davis v. Board of School Commissioners ........ 5

B. Parrish v. Board of Bar Commissioners .......... 8

Reasons For Granting the Writ ......2....20..020.-.eeeeeeceeeee )

I ciliccaiatidesnsnccetestinsiceiendsnstinsdcetnentabiaideisedbadaniattinkamddsaanenls 19

ApPENDIX—

Order of the District Court, Davis v. Board of School

Commissioners, February 14, 1975 2... eee la

Decision of the Court of Appeals, Davis v. Board of

School Commissioners, August 21, 1975 _.....000.......... 5a

Order of the Court of Appeals Denying Rehearing,

Davis v. Board of School Commissioners, October

I I jisesihididinceeeuesctdnteseisipgisesonbassiihaniiosadibidaddiiaiaplihidhansdldeiibecuumnian 15a

PAGE

Order of the District Court, Parrish v. Board of Bar

Commissioners, March 23, 1973 ....................:-:0+-0+-+ —_

Decision of the Court of Appeals, Parrish v. Board of

Bar Commissioners, December 2, 1974 .....................-.- 19a

Decision of the Court of Appeals, Parrish v. Board of

Bar Commissioners, December 4, 1975 ........................ 36a

Decision of the District Court, Robinson v. Union

Carbide Corp., August 29, 1974 ........................c--c-0+0 53a

TABLE oF AUTHORITIES

Cases:

Antonello v. Wunsch, 500 F.2d 1260 (10th Cir. 1974) .... 19n

Berger v. United States, 255 U.S. 22 (1921) ...... 10, 14, 18, 19

Botts v. United States, 413 F.2d 41 (9th Cir. 1969) _..... 18

Brown v. Board of Education, 347 U.S. 483 (1954) .... 6n

Commonwealth Castings Corp. v. Continental Casualty

ee SE TI TY I siiainiicciaissicrsnstnssienatiniemsomninntann —

Davis v. Board of School Commissioners, 402 U.S. 33

REESE NC nee ee Sane eee eS See ee 5

Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7

5 RT I nT kA On ED 16

Gallarelli v. United States, 260 F.2d 259, 261 (1st Cir.

SI lesb dmeendcnaabatien delice a i ae 19

Government of Virgin Islands v. Gereau, 502 F. od 914

SOY WEG: SUTIN tcaithaacdacstabetincdiseamnpntisoccsiovomnnahaaeticaneie manilntie 18

ili

PAGE

In re Murchison, 349 U.S. 133 (1954) 00. 16

In re Union Leader Corp., 292 F.2d 381 (1st Cir. 1961) 19

Johnson vy. Mississippi, 403 U.S. 212 (1971) —...00.... 14

Laird v. Tatum, 409 U.S. 824 (1972) seonsonesensessssenesscsercell tty AG

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) —.......... 14

NAACP v. Button, 371 U.S. 415 (1963) _...00 6

Newman v. Piggie Park Enterprises, 390 U.S. 400

SUD. scheshiteshichiniiietieincinishdtilagmetesiielcentiiadeniaiteteininmesnisiiniiaahssanie 6

Pfizer v. Lord, 456 F.2d 532 (8th Cir, 1972) 00002... 19

Public Utilities Commission v. Pollak, 343 U.S. 451

IIE: iain in acai neaioieehaesiemieitlotiniieesdacienniinien 10

Reveive Mining Co. v. Lord, —— F.2d —— (8th Cir.

SIE ~ laiaiocisiahnsianiiciutdaiesetadieimninnseansenieennvcnedlibipinsssddisatescibeeiniinn 14

Robinson v. Union Carbide Corp., 380 F.Supp. 731

NG TRIED cnieih ichachcisincathnsinnsbioccithinnsepiniciatticsepciccetmenniti 6, 13

Tumey v. Ohio, 273 U.S. 510 (1927) ~.....2.. nee 16

United States v. Bell, 351 F.2d 868 (6th Cir. 1965) ...... 19

United States v. Ming, 466 F.2d 1000 (7th Cir. 1972) ... 18

United States v. Rosciano, 499 F.2d 173 (7th Cir. 1974) 18

United States v. Thompson, 479 F.2d 1072 (3d Cir.

SUED dhiienetiadnndddisdilanibestibasiquunummnnmentimimiammenintaeaueintes 18

United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969) 18

Whitaker v. McLean, 118 F.2d 596 (D.C.Cir. 1941) ...... 19

Statutes:

ET eS Ee meee: 3, 5, 6, 8, 10, 13, 14

oer |

PAGE

BF Se See 3, 4, 5, 9, 11, 12, 13, 14, 16, 17

Be TR: | eee 2

BD Es SD cotetteeisicetinimnnnmmnnninn ee |

8 Ee a 8

SS een 8

I. SI I nectestctineccniesinpasnikihniibcniahienoviitasinedieanaitiaseipecnesincinininaiintidia 9

Se MII TUTE ssdtnncenscoseniitesieinioniteseeiarencaniienioniotasnanieninmnanininptaninantnii 10

Sy TE: SEED hinrhensensciuntttniennestnoniseinensbessenimisienssiinisiitoubentes 4)

ny a UII ccssheiibeenceDeiutitenesiaiaeeicineittncglita 11

Legislative Materials:

eS 8 Rt: ) ee 12, i7

RD Fe 17

Hearings Before a Subcommittee of the Senate Ju-

diciary Committee on S. 1064, 93rd Cong., 1st Sess.

SEED “cxspmistisidcipieeiitscnicitaiinsieintehtadinatipnegsiasieiiidngiicienainilite “ais 13

Hearings Before the Senate Judiciary Committee on

Nominations to the United States Supreme Court,

92nd Cong., Ist Sess. (1971) —............. anhiiicadjaenticcinaia 11,17

Hearings Before the Senate Judiciary Committee on

a Nomination to the United States Supreme Court,

9ist Cong., 2d Sess. (1970) ...........................cceciessesseceesee 11, 15

PAGE

115 Cong. Ree. ...........-.. Donnanistneinianisseniainbenpisjasnisineidasaeibimiaials 11

Other Authorities:

Federal Rules of Evidence, Rule 608 ................. eiliaaddeaiees 16

Rules of the Supreme Court, Rule 23(5) -—...................... 2

Code of Judicial Conduct ..............0.......20.2.cce0-e0- isscceeld by 16, 17

Reporter’s Notes to Code of Judicial Conduct (1973) ..12, 16

Shogan, A Question of Judgment (1972) 1.00000... 11

Frank, “Disqualification of Judges,” 35 Law and

Contemp. Probs 43 (1970) ..0000...2..eeeeee 11, 15, 16,17

Frank, “Disqualification of Judges,” 56 Yale L. J.

Et, en seatnnmamenictessiniitasadialll . 10

Note, 57 Minn. L. Rev. 749 (1973) .222....2...2....-.---ccecceeeeneee 9,11

In THE

Supreme Court of the Anited States

Ocroser Term, 1975

No. 75-

Brapiz Mag Davis, Epwin Foster,

and James E. Busxey, et al.,

Petitioners,

Boarp or ScHoot CoMMISSIONERS OF

Mositz County, et al.,

Aurrepo G. Parrisx, et al.,

Petitioners,

Boarp oF COMMISSIONERS OF THE

AvaBaMa Stare Bar, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The petitioners respectfully pray that a writ of cer-

tiorari issue to review the judgments and opinions of

the United States Court of Appeals for the Fifth Cir-

cuit entered in these proceedings on August 21, 1975,

October 2, 1975, and December 4, 1975.

Opinions Below

1. Davis v. Board of School Commissioners

The opinion of the court of appeals is reported at 517

F.2d 1044, and is reproduced in the Appendix at pp. 5a-

14a. The order of the court of appeals denying rehear-

ing is reported at 517 F.2d 1044, and is reproduced in the

Appendix at p. 15a. The order of the district court is un-

reported and is reproduced in the Appendix at pp. la-4a.

2. Ferrish v. Board of Bar Commissioners

The opinion of the court of appeals en banc is reported

at 524 F.2d 98, and is reproduced in the Appendix at pp.

36a-52a. The earlier opinion of the panel of the court of

appeals is reported at 505 F.2d 12, and is reproduced in

the Appendix at pp. 19a-35a. The order of the court

of appeals withdrawing the panel opinion is reported at

509 F.2d 540. The order of the district court is unre-

ported and is reproduced in the Appendix at pp. 17a-18a.

Jurisdiction

1. Davis v. Board of School Commissioners

The judgment of the court of appeals was entered on

August 21, 1975; a timely petition for rehearing was

denied on October 2, 1975. On December 23, 1975, Mr.

Justice Powell signed an order extending the time for

the filing of this petition until January 30, 1975 (No. A.

560). Jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

2. Parrish v. Board of Bar Commissioners

The judgment of the court of appeals sitting en banc

was entered on December 4, 1975. Jurisdiction of this

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

A single petition for a writ of certiorari seeking re-

view in both cases is being filed pursuant to Rule 23(5)

of this Court, since the issues raised by these cases are

closely related.

Question Presented

Did the Court of Appeals apply the proper standards

under 28 U.S.C. § 455 and 28 U.S.C. § 144 in holding that

two federal district judges properly declined to recuse

themselves?

Statutory Provisions Involved

Section 144, 28 U.S.C., provides:

Whenever a party to any proceeding in a district

court makes and files a timely and sufficient affidavit

that the judge before whom the matter is pending has

a personal bias or prejudice either against him or in

favor of any adverse party, such judge shall proceed

no further therein, but another judge shall be assigned

to hear such proceeding.

The affidavit shall state the facts and the reasons for

the belief that bias or prejudice exists, and shall be

filed not less than ten days before the beginning of the

term at which the proceeding is to be heard, or good

cause shall be shown for failure to file it within such

time. A party may file only one such affidavit in any

case. It shall be accompanied by a certificate of coun-

sel of record stating that it is made in good faith.

Section 455, 28 U.S.C., provides in pertinent part:

(a) Any justice, judge, magistrate, or referee in

bankruptcy of the United States shall disqualify him-

self in any proceeding in which his impartiality might

reasonably be questioned.

(b) He shall also disqualify himself in the following

circumstances :

(1) Where he has a personal bias or prejudice

concerning a party, or personal knowledge of dis-

puted evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer

in the matter in controversy, or a lawyer with whom

he previously practiced law served during such as-

sociation as a lawyer concerning the matter, or the

judge or such lawyer has been a material witness

concerning it;

(3) Where he has served in governmental employ-

ment and in such capacity participated as counsel,

adviser or material witness concerning the proceed-

ing or expressed an opinion concerning the merits

of the particular case in controversy;

(4) He knows that he, individually or as a fidu-

ciary, or his spouse or minor child residing in his

household, has a financial interest in the subject

matter in controversy or in a party to the proceed-

ing, or any other interest that could be substantially

affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third

degree of relationship to either of them, or the

spouse of such a person:

(i) Is a party to the proceeding, or an officer,

director or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest

that could be substantially affected by the outcome

of the proceeding;

(iv) Is to the judge’s knowledge likely to be a

materia! witness in the proceeding.

sonal and fiduciary financial interests, and make a

reasonable effort to inform himself about the personal

financial interests of his spouse and minor children

residing in his household.

Prior to the 1.74 amendment, 88 Stat. 1609, 28 U.S.C.

§ 455 provided:

Any justice or judge of the United States shall dis-

qualify himself in any case in which he has a substan-

tial interest, has been of counsel, is or has been a ma-

terial witness, or is so related to or connected with

any party or his attorney as to render it improper, in

his opinion, for him to sit on the trial, appeal, or

other proceeding therein.

Statement of the Case

This petition seeks review of two decisions of the Fifth

Circuit in which the standards for recusal of a district

judge under 28 U.S.C. § 144 and the 1974 amendments to

28 U.S.C. § 455 were determined. The procedural history

and facts of the two cases will be described separately.

A. Davis v. Board of School Commissioners

Davis is a school desegregation case originating in the

Southern District of Alabama involving Mobile, Alabama.

Following the decision of this Court in 1971, 402 U.S. 33,

a desegregation plan was entered by stipulation of the par-

ties. In 1974 petitioners Edwin Foster and James E. Bus-

key, both black assistant principals, were permitted to in-

tervene in Davis to seek relief against alleged discrimina-

tion in promotions by the Mobile School Board.’ Counsel

* See the Court of Appea’s’ decision at pp. 7a-8a.

for both intervenors was James U. Blacksher, also counsel

for the original plaintiffs in the school desegregation case ;

his co-counsel are attorneys employed by the NAACP Le-

gal Defense and Educational Fund, Inc., an organiza.ion

whose main purpose is the support of litigation brought

under the various civil rights acts and the Constitution to

establish and enforce the rights of black citizens. The

judge to whom the case was then assigned was the Hon.

William Brevard Hand.

On September 27 and November 20, 1974, respectively,

petitioners Foster and Buskey filed essentially identical

motions and affidavits pursuant to 28 U.S.C. § 144, seeking

recusal of Judge Hand. The affidavits were based pri-

marily on an opinion entered by Judge Hand one month

earlier in an entirely different civil rights case in which

Mr. Blacksher and the Legal Defense Fund attorneys were

also involved, Robinson v. Union Carbide Corp., 380 F.Supp.

731 (S.D. Ala. 1974). In Robinson aggressive private en-

forcement of public policies which “Congress considered

of the highest priority,” Newman v. Piggie Park Enter-

prises, 390 U.S. 400, 409 (1968), was condemned by Judge

Hand as “perfidy”. P. 56a. Concerted activity to vindicate

through litigation the civil rights of blacks, accorded First

Amendment protection by NAACP v. Button, 371 U.S. 415

(1963), was attacked by Judge Hand as a “tragedy” entail-

ing “the destruction of the high quality of the legal profes-

sion.” P. 57a. The affidavit of petitioner Foster and the

relevant portions of the Robinson opinion are set out in

the Appendix, pp. 13a-14a, 53a-57a. The affidavits alleged

that Judge Hand had, through extra-judicial sources,

formed the opinion that plaintiffs in civil rights actions

2See NAACP v. Button, 371 U.S. 415, 421, n. 5 (1963); the

Legal Defense Fund has been involved in numerous eases before

this Court, including Brown v. Board of Education, 347 U.S. 483

(1954).

who were represented by Mr. Blacksher and/or Legal De-

fense Fund attorneys did not have valid grievances, but

had been solicited by the attorneys to present unwarranted

claims to further various unconscionable purposes of the

attorneys. Judge Hand was thus alleged to be biased

against petitioners Foster and Buskey and unwilling to

judge their claims on the basis of the facts adduced at trial

or the applicable law.

Judge Hand denied the motions, partly on the basis

that, as a matter of fact, he was not biased. The district

judge certified the question to the court of appeals under

28 U.S.C. § 1292(b), pp. la-4a, and the court granted peti-

tions for leave to file interlocutory appeals. On August

21, 1975, a panel of the court of appeals affirmed Judge

Hand’s refusal to recuse himself on the ground that, re-

gardless of whether the affidavits in fact demonstrated

bias or the appearance of bias, the affidavits were legally

insufficient. First, the court held that a party could not

base recusal on actions taken or statements made by a

judge in court, but could only rely on extra-judicial events.

Since the evidence of Judge Hand’s prejudice consisted of

in-court statements, that evidence was subject to the court’s

exclusionary rule, even though the statements relied upon

occurred in an entirely separate case. Second, the court

held that evidence of bias or prejudice directed at a party’s

lawyers also could not be considered, and since the evi-

dence itself was inadmissible it could not be relied upon

to infer that a judge implacably hostile to an attorney

might, for that reason, be or appear to be less than fair to

his clients. Pp. 9a-13a. A timely petition for rehearing was

denied on October 2, 1975.

B. Parrish v. Board of Bar Commissioners

Parrish is an action brought under 42 U.S.C. §§ 1981 and

1983, charging that the Board of Examiners of the Alabama

State Bar, its members and officials, had, both intention-

ally and because of the effect of bar examinations and

their method of administration, discriminated against black

applicants for admission to the bar. The case arose in

the Middle District of Alabama and was assigned to Judge

Robert E. Varner.

During the preliminary phases of the litigation questions

arose concerning Judge Varner’s impartiality; to clarify

the matter Judge Varner submitted to questions by counsel

for plaintiff at a hearing held for this purpose. Appendix

pp. 24a-25a. In that testimony Judge Varner acknowledged

his personal friendship with most of the defendants, and

his confidence in the veracity and integrity of key defense

witnesses. Promptly after this hearing plaintiffs filed a

motion and affidavit under 28 U.S.C. 4 144 to recuse Judge

Varner. Plaintiffs urged, inter alia, that both Judge

Varner’s recent leadership role in a bar association that

excluded blacks, and his preconceived and extra-judicial

belief in the veracity of defendants in a case where their

credibility as to intentional discrimination would be a

major issue, required that he disqualify himself.

The District Judge declined to recuse himself. Shortly

thereafter he granted defendants’ motion for summary

judgment. Plaintiffs’ claim that the defendants had en-

gaged in intentional racial discrimination in administering

the state bar examination was denied on the ground, inter

alia, that the defendants had submitted conclusory affi-

davits denying it. An appeal from the final order granting

summary judgment and dismissing the complaint was taken,

and the recusal question was one of the issues presented

on appeal.

On December 12, 1974, a panel of the Fifth Circuit

(Judges Tuttle, Wisdom, and Gee), reversed the refusal

of Judge Varner to recuse himself in Parrish. Appendix,

pp. 19a-35a. On February 20, 1975, the court of appeals

sua sponte withdrew its opinion, 509 F.2d 540; on June 5,

1975, it informed the parties that it had, also sua sponte,

decided to hear Parrish en banc, and invited the parties to

file additional briefs.* On December 4, 1975, the court

issued its en banc decision in Parrish. The majority opin-

ion written by Judge Bell, the author of the panel decision

in Davis, concluded that neither § 144 nor § 455 required

recusal.‘ Four judges concurred specially and three dis-

sented, Pp. 36a-52a.

Reasons for Granting the Writ

This case arises out of the most recent attempt by Con-

gress to tighten the standards as to when a federal judge

must recuse himself from a case.

The first such statute, adopted in 1792 to overcome the

manifest inadequacy of the common law regarding re-

cusal, authorized disqualification on a number of specified

grounds.’ The succeeding versions of this provision ex-

isted until 1974 as 28 U.S.C. § 455. Over the years the

lower courts so narrowed the applicability of these enum-

erated grounds,® so broadened the discretion of judges in

3 The case was not set for reargument en banc.

* Section 3 of the Act amending § 455 provides that the amend-

ments apply to any appeal which had not been fully submitted

to the appellate court prior to December 5, 1974. Briefs were filed

in both Parrish and Davis subsequent to that date. See p. 4la.

51 Stat. 278.

* Note, 57 Minn. L.Rev. 749, 752 (1973).

applying the statute,’ as to render the statute largely

ineffective.

This process of emasculation led Congress to adopt in

1911 the provisions now codified as 28 U.S.C. § 144.* Sec-

tion 144 provides that a judge must disqualify himself

upon the filing of an affidavit by the party stating that

he believes the judge to be biased or prejudiced and

stating the reasons for the affiant’s belief. In 1921 this

Court handed down its only construction of section 144

in Berger v. Umted States, 255 U.S. 22 (1921), which

directed that a judge with a firm belief in the disloyalty

of German emigrants disqualify himself from presiding

at a trial of Gerraan-Americans charged with espionage.

This Court, reading section 144 literally and in light of

its legislative purpose, held that the “facts and reasons”

in the required affidavit need not prove the judge was in

fact biased, but need only have a reasonable relation to

the affiant’s belief and be neither “frivolous [n]or fan-

eiful”. 225 U.S. at 33-34. The policy underlying the

statute was stated to be “that the tribunals of the coun-

try shail not only be impartial in the controversies sub-

mitted to them, but shall give assurance that they are

impartial.” 255 U.S. at 35-36. In Public Utilities Com-

mission v. Pollak, 343 U.S. 451, 466-67 (1952) Mr. Jus-

tice Frankfurter disqualified himself out of a concern

“that the administration of justice should reasonably ap-

pear to be disinterested as well as to be so in fact.” In

1968 this Court concluded that, as a matter of “constitu-

tional principle”, “any tribunal permitted by law to try

° Saas “Disqualification of Judges”, 56 Yale L.J. 605, 628

1947).

®* The congressional debates leading to the enactment of section

144, 36 Stat. 1090, were expressly directed at the defects of section

455 as it then existed.

cases and controversies not only must be unbiased but

also must avoid even the appearance of bias.” Common-

wealth Coatings Corp. v. Continental Casualty Co., 393

U.S. 145, 150 (1968). In the lower courts, however, the

efficacy of section 144 was steadily eroded by a series

of judicially fashioned exceptions and technicalities and

an increasingly open refusal to adhere to the standard set

in Berger itself.®

The most recent legislation, Pub. L. 93-512, which is

the subject of this petition, arose out of a series of con-

troversies regarding actual or proposed members of this

Court.’® In the course of that controversy the American

Bar Association in 1969 appointed a committee to review

generally the standards of judicial conduct." In June,

1970, the ABA committee circulated a draft Standards

of Judicial Conduct which, with regard to recusal, ex-

panded the specific categories of situations requiring dis-

qualification. In July legislation was proposed in the Sen-

ate to modify section 455 by incorporating a similar

enumeration, but adding a broadly worded provision re-

quiring disqualification in any case where participation

would “create an appearance of impropriety.”* In the

* See p. 46a; Note, 57 Minn. L.Rev. 749, 755 (1973).

10 See Shogan, A Question of Judgment (1972) ; 115 Cong. Ree.

34049, 34268, 34275, 34287, 34375, 34425, 34432, 34450, 34553,

34597, 34825, 34843, 34861, 35120, 35130, 35368, 35395, (1969) ;

S. Exec. Rep. No. 91-92, 91st Cong., Ist Sess. (1969) ; Frank, “Dis-

qualification of Judges,” 35 Law and Contemp. Probs. 43, 60-61

(1970); Hearings Before the Senate Judiciary Committee on a

Nomination to the United States Supreme Court, 91st Cong., 2d

Sess., 41, 49-50 (1970); Hearings Before the Senate Judiciary

Committee on Nominations to the United States Supreme Court,

92nd Cong., Ist Sess., 49-50, 60-61, 73-74, 203-05 (1971).

11Frank, “Disqualification of Judges’, 35 Law and Contemp.

Probs 438, 62 (1970).

2 Id., 63, 68.

ensuing debate within the ABA committee the Senate

proposal for such a catch-all clause was accepted, and

Canon 3C(1) prefaced the enumeration of specific cir-

cumstances requiring disqualification with the words “A

judge should disqualify himself in a proceeding in which

his impartiality might reasonably »e questioned, includ-

ing but not limited to instances where: ....” The Re-

porter’s Notes relied on Commonwealth Castings, and

stressed that “Although the specific standards cover most

of the situations in which disqualification will arise, the

general standard should not be overlooked.”** The new

Canons were adopted by the ABA in 1972, and by the

Judicial Conference of the United States in April 1973.

Legislative proposals by various Senators resulted, in De-

cember, 1974, in the adoption of a comprehensive new

version of section 455 which is substantially identical to

Canon 3C, except for the addition of subsection (b) (3)

which deals with the recusal problem discussed in Laird

v. Tatum, 409 U.S. 824 (1972). Section 455(a) contains

the broad language sought since 1970 by the Senate spon-

sors requiring a judge to disqualify himself “in any pro-

ceeding in which his impartiality might reasonably be

questoned.” *®

Parrish and Davis are the first decisions construing and

applying section 455. In both cases the issue of recusal

arose at a preliminary stage when an appellate decision

in favor of recusal would not require a retrial, and in both

instances, of course, there were available to hear the case

other federal judges whose background would not raise

the troublesome question posed by Judges Varner and

18 Reporter’s Notes to Code of Judicial Conduct, 60 (1973).

14 See S.Rep. No. 93-419, p. 6 (1973).

18 See id., p. 5.

Hand. Petitioners maintain that the decisions of the court

of appeals have, within a year of its adoption, virtually

nullified the new section 455.

Section 455 was intended to overcome the problems which

had rendered section 144 ineffective by adopting in sub-

section (a) a broad disqualification requirement with ab-

solutely no limitations as to type of potential bias, source

of potential bias, or procedure. The Senate sponsor urged

that section 455 was necessary because “No statute creates

more distrust than does the section 144 procedure for dis-

qualification”.’* Davis overcomes this legislative plan by

the simple expedient of expressly reading into section 455

every limitation it believes existed under section 144. The

indisputable evidence in Davis reveals that Judge Hand

in the Robinson case expressed implacable hostility to

civil rights litigants represented by Mr. Blacksher and

Legal Defense Fund attorneys, characterizing their efforts

to enforce federal civil rights laws as “perfidy”. Pp. 56a-

57a. Plaintiffs in the Davis case filed a detailed affidavit

documenting the reasons for their belief that Judge Hand

regarded them and all other parties represented by

Blacksher as having grievances thet were invalid and un-

warranted. Pp. 13a-l4a. It cannot be seriously questioned

that, in the literal terms of that statute, a reasonable man

could doubt the impartiality of Judge Hand in civil rights

eases handled by Mr. Blacksher and his associates. The

Fifth Cireuit avoided this otherwise inescapable conclu-

sion by holding that none of the evidence on which peti-

tioners rely is legally “available.”

The court of appeals adopted from its reading of see-

tion 144 case law two distinct exclusionary rules pro-

hibiting consideration of evidence that a judge is prejudiced

against a party’s counsel or of evidence coming to light in,

16 Hearings Before a Subcommittee of the Senate Judiciary Com-

mittee on 8.1064, 93rd Cong., Ist Sess., 13 (1973).

or of prejudice due to events in, any judicial proceeding.

The court did not deny that a reasonable man could sensibly

not fear that a judge would vent his hostility towards a

lawyer on the lawyer’s clients, or that reasonable men in

assessing a judge's impartiality would consider how the

judge conducted himself in court. The court of appeals

reasoned, rather, that the Congress which repealed the old

section 455 and regarded section 144 as ineffective intended

to apply to the new section 455 the gloss which some lower

courts had used to debilitate section 144. Nothing in the

language or legislative history of section 455(a) suggests

any such congressional intent to so emasculate that stat-

ute. Moreover, the Fifth Circuit’s conclusion that such

evidence was inadmissible prior to section 455 is incon-

sistent with this Court’s decisions in Berger, which involved

evidence of prejudice arising in judicial proceeding, and

Johnson vy. Mississippi, 403 U.S. 212, 215 (1971), which

relied heavily on evidence that the judge in that case was

prejudiced against a party’s attorney. See also Mayberry

v. Pennsylvania, 400 U.S. 453 (1971); Reserve Mining Co.

v. Lord, —— F.2d —— (8th Cir. 1976).

In Parrish, unlike Davis, the court of appeals held the

evidence adduced was admissible, but applied a standard

as to when impartiality can be questioned so high that it

cannot be met in virtually any conceivable case. The re-

quest for recusal in Parrish is grounded upon five factors,

any one of which should be sufficient to require a judge

to step aside. First, the judge candidly conceded his be-

lief that the key defense witness, the Secretary of the

Commission, a close personal friend of the judge, would

not lie.’? Second, the judge was admittedly a close per-

‘7 “T think Mr. Scott is an honorable man .... I think he would

try to tell you the truth in his answers.” Transcript of Hearing

of December 22, 1972, p. 21. The testimony of Scott is critical to

the issue of whether the Commissioners could have known the race

of the applicants whose tests they were grading.

sonal friend of two of the defendants, and acquainted with

at least 7 of the other defendants, but did not know any

of the plaintiffs."* Third, since the judge was a member

of the defendant Bar Association, which is dependent for

its funds on assessments of its members, he faced indirect

personal liability for any costs, counsel fees or damages

that might be awarded to plaintiffs. P. 43a. Fourth, there

were serious questions as to whether the judge had, only

a few years earlier, supported or condoned racial discrim-

ination by the Montgomery County Bar Association similar

to that alleged to have been practiced by the state bar

association. Pp. 43a, 49a. Fifth, the attorney who rep-

resents the defendants in this case is also representing

Judge Varner in connection with an investigation of the

conduct of Judge Varner in an unrelated case.’*® The

en banc majority in Parrish concluded that, despite this

extraordinary combination of circumstances, a reasonable

man could not reasonably question Judge Varner’s im-

partiality. P. 42a.

If there was ever a period in American jurisprudence

when reasonable men would not doubt the fairness of a

judge in such a case,” “the times have changed”’.*' Past

18 Td, pp. 6, 8, 20-21.

1° This circumstance arose while Parrish was pending on appeal

and bears on whether Judge Varner should sit when the case is

remanded for further proceedings.

2° Admittedly the standards were rather lax in the eighteenth

century. See Frank, “Disqualification of Judges”, 35 Law and

Contemp. Probs 43, 44 (1970).

*1 Hearings Before the Senate Judiciary Committee on a Nom-

ination to the United States Supreme Court, 91st Cong., 2d Sess.,

41 (1970). (Statement of Mr. Justice Blackmun) Regarding the

“evolving standards” as to when a judge should withdraw from

a case, Mr. Justice Blackmun reiterated “I think the times have

changed a great deal in the past 5 years and I would not say for

the worse by any means.”

practice in this Court suggests that no member of the Court

would participate in a decision in this case if he bore the

same relationship to the defendants, the defense witnesses,

and the defendants’ attorney as did Judge Varner. The

district judge’s personal knowledge of the veracity of the

key defense witnesses would doubtless render him an ideal

character witness,” but section 455(b)(1) forbids a judge

from sitting in any case where he has such “personal

knowledge of disputed evidentiary facts.” Compare Laird

v. Tatum, 409 U.S, 824, 826-7 (1972) (Rhenquist, J.).** As

a member of the defendant Bar Association the judge also

has financial “interest that could be substantially affected

by the outcome of the proceeding.” Section 455(b)(2).*

Compare Fairfax’s Devisee v. Hunter’s Lessee, 11 US.

(7 Cranch) 603 (1813).*%° For Judge Varner to sit in a

case where his personal lawyer represented one of the

parties would be to raise tue same type of question of pos-

sible bias as would exist if he heard a case in which his

22 Federal Rules of Evidence, Rule 608. Of course Canon 2 for-

bids a judge from testifying voluntarily as a character witness.

See Reporter's Notes to Code of Judical Conduct, p. 49 (1973).

It would be incongruous, to say the least, if the Canons forbade

a judge from being a voluntary witness in such a case but did not

preclude him from volunteering to adjudicate it.

23 This rule is constitutionally required. In re Murchison, 349

U.S. 133, 138 (1954), forbade a judge who had sat as a one-man

grand jury from trying a prosecution for contempt because he

had “personal knowledge and impression of what occurred in the

grand jury room.”

“4 This may not constitute a “financial interest’ within the mean-

ing of section 455(d) (4), but section 455(b) (4) ineludes not only

financial interests but “any other interest”, a category expressly

intended to have “a broad sweep”. Reporter's Notes To Code of

Judicial Conduct, 66 (1973).

°° Regarding the nature of Chief Justice Marshall’s interest see

Frank, “Disqualification of Judges”, 35 Law and Contemp. Probs.

43, 45 (1970). This rule is also constitutionally mandated. Tumey

v. Ohio, 273 U.S. 510 (1927).

son was of counsel.** The partiality of any judge would

clearly subject to question in a case in which one of the

parties, or a victim of the crime involved, was a personal

friend.

It is difficult to believe that the draftsmen of the amended

section 455 would have been less than astonished at the

suggestion that, after five years of congressional debate

and the enactment of the most sweeping recusal statute in

the history of the federal courts, Judges Varner and Hand

could still sit in these cases. In the face of the decisions

below section 455 is virtually a dead letter in the Fifth

Cireuit. Davis is likely to exclude most relevant evidence

of potential bias, and whatever is admissible is likely to be

less persuasive than the facts in Parrish. This Court should

not permit a salutary enactment designed to substantially

broaden the circumstances requiring recusal to be so nulli-

fied in less than a year after it enactment by Congress.

In amending section 455 Congress was concerned with

more than the rights and interests of particular litigants.

The disputes regarding nominations to this Court reflected

a conviction that it is “quite important for the public to

have confidence in the members of the Court that they

have no interest other than to do justice under law.” *’

Both the House and Senate reports stressed that general

language of the new section 455 was “designed to promote

public confidence in the impartiality of the judicial pro-

cess.” ** See Code of Judicial Conduct, Canon 2 (A).** The

26 The evolving standard applied by members of this Court in

that situation is discussed in Frank, “Disqualification of Judges”,

35 Law and Contemp. Probs. 43, 46-48 (1970).

*7 Hearings Before the Senate Judiciary Committee on Nomina-

tions to the United States Supreme Court, 92nd Cong., Ist Sess..

204 (1971) (Statement of Mr. Justice Powell).

28S. Rep. No. 93-419, 5 (1973) ; H.R. Rep. 93-1453, p. 5 (1974).

29 “A judge should . . . conduct himself at all times in a manner

that promotes public confidence in the integrity and impartiality

of the judiciary.”

willingness of disputing parties to submit their disagree-

ments to the judiciary for resolution, to cooperate with

and facilitate the established judicial procedures, and to

acquiesce in the conclusions reached by those tribunals,

depends above all on their belief that the judges will act

impartially. It is for this reason that the effective ad-

ministration of justice requires of all judges who may hear

a case that they “be fair and that they appear to be fair—

to the [parties], to those who are deeply interested in

[their] future, and to the public at large.” United States

v. Rosciano, 499 F.2d 173, 175 (7th Cir. 1974) (Stevens, J.,

dissenting). To permit Judges Hand and Varner to con-

tinue to sit in these cases would be inimical to the public

confidence which Congress was intent upon restoring.

The decisions below are also squarely inconsistent with

this Court’s decision in Berger. Berger held that an affi-

davit would be sufficient for purposes of section 144 if the

facts alleged provide a reasonable basis for the affiant’s

belief that the judge is prejudiced against him. 255 U.S. at

33-34. The dissenters in the Parrish, en banc decision, who

were the original majority in the panel decisien, expressly

adhered to this “subjective” standard. Pp. 3la-35a. The

panel in Davis and the en banc majority in Parrish insisted

that the affdavit must demonstrate that the judge is in

fact biased. Pp. 10a-12a, 49a. Judge Gee, specially con-

curring in Parrish, attackea Berger as “an outdated rule”,

expressed his conviction that this Court would decide

Berger otherwise today, and urged the court of appeals to

openly disregard that decision. Pp. 44a-47a. As of now

the circuits are divided on whether Berger is still good law.

Four circuits adhere to Berger, holding an affidavit suffi-

cient if it gives fair support to the affiant’s belief,®® four

3° United States v. Tropiano, 418 F.2d 1069, 1077 (2d Cir. 1969) ;

United States v. Thompson, 479 F.2d 1072, 1073-74 (3d Cir. 1973) ;

Government of Virgin Islands v. Gereau, 502 F.2d 914, 932 (3d

Cir. 1974) ; United States v. Ming, 466 F.2d 1000, 1004 (7th Cir.

1972) ; Botts v. United States, 413 F.2d 41 (9th Cir. 1969).

Mims Rnd itch 42. taut blest hada

<del aA BS + we

Riri ua. ahead Send 2 ~

circuits, including the Fifth, now require the affidavit to

prove prejudice in fact,*’ and two circuits, while rephrasing

Berger, have nonetheless rejected any requirement that bias

be proven.” This broad conflict as to the vitality of Berger

is sufficient, in and of itself, to require a grant of certiorari.

CONCLUSION

For the above reasons, a Writ of Certiorari should issue

to review the judgments and opinions of the Fifth Cireuit.

Respecifully submitted,

Micuae. I. Sovern

435 W. 116th Street

New York, New York 10027

JacK GREENBERG

James M. Nasairt, III

CuHarLes STEPHEN RaLsTon

Eric ScHNAPPER

10 Columbus Circle

Suite 2030

New York, New York 10019

J. E. BuacksHer

Crawford, Blacksher & Kennedy

1407 Davis Avenue

Mobile, Alabama 36603

U. W. Ciemon

Adams, Baker & Clemon

2121 North Eighth Avenue

Birmingham, Alabama 35203

Attorneys for Petitioners

*1 United States v. Bell, 351 F.2d 868, 879 (6th Cir. 1965);

Pfizer v. Lord, 456 F.2d 532, 537 (8th Cir. 1972); Antonello v.

Wunsch, 500 F.2d 1260 (10th Cir. 1974).

82 In re Union Leader Corp., 292 F.2d 381, 389 (1st Cir. 1961) ;

Gallarelli v. United States, 260 F.2d 259, 261 (1st Cir. 1958);

Whitaker v. McLean, 118 F.2d 596 (D.C. Cir. 1941).

APPENDIX

‘*

Order of the District Court, February 13, 1975

IN THE

UNITED STATES DISTRICT COURT

For THE

SoutHEerN District oF ALABAMA

SouTHERN Dtvtsion

Civil Action No. 3003-63-H

Brrore Mae Davis, et al.,

Plaintiffs,

Unitep States oF AMERICA, ©

Plaintiff-Intervenor,

Epwin Foster,

Plaintiff-Intervenor,

James E. Buskey,

Plaintiff-Intervenor,

vs.

Boarp oF Scuoot Commissioners OF MosiLte Country, et al.,

Defendants.

ORDER

Plaintiff-Intervenor, James E. Buskey, having filed an

affidavit pursuant to the provisions of 28 U.S.C. §144 for

the Judge to recuse himself from further proceeding in

2a Order of the District Court, February 13, 1975

or presiding over any aspect of this trial and the Court

having considered the same in light of what the Court

understands to be the law as set forth in Parrish v. Board

of Commissioners of Alabama State Bar, Court of Appeals

Case #73-3553, #74-1523, Denies the same and certifies

this issue to the Court of Appeals pursuant to the provi-

sions of 28 U.S.C., §1292(b).

As this Court interprets the opinion of the Court of

Appeals in Parrish, supra, when an affidavit such as is

found herein is made, there is imposed upon the Judge

the duty of determining whether or not that affidavit is

as required and specified by the statute and is legally

sufficient. As this Court understands the test, it is whether

the facts alleged could reasonably lead to the belief by

the affiant that what the affidavit says exists did in fact

exist in the mind of the affiant.

In support of the affidavit, affiant attached a copy of

this Judge’s opinion in the case of Robinson v. Union

Carbide, Civil Action No. 7583-73-H, a case now on ap-

peal to the Court of Appeals, and one of the Court’s

rulings rendered in Birdie Mae Davis, et al. v. Board of

School Commissioners, etc., et al., Civil Action No. 3003-

63-H entered on August 16, 1974, which incidentally is

also now part of the an appeal to the Court of Appeals.’

The affidavit states that affiant, upon request of his coun-

sel, read the aforementioned opinion and order and came

to his conclusion as a result thereof. No where does it

appear in the affidavit or statement that counsel for af-

fiant furnished or offered him a copy of the transcript

forming the factual basis for the opinion in Union Car-

bide nor the related petitions and orders constituting the

1 Civil Action #74-8484.

Order of the District Court, February 13, 1975 3a

basis of this Court’s Order of August 16, 1974 in Birdie

Mae Davis. Such selectivity of evidence has been used

through the ages to produce desired results envisioned

by the motivating force or at least this was so until the

adoption of the Constitution and the Bill of Rights of the

United States.

Among other conclusions drawn bv affiant in his affi-

davit is that, “In particular Judge Hand is biased and

prejudiced against anyone or any group of persons * * *

presenting * * * claims through attorneys employed by/or

associated with the NAACP Legal Defense and Educa-

tional Fund, Inc. * * * ete.”, and concluded members of

his race could not fare well before him. By admission,

counsel furnished only two selected matters and ignored

providing affiant with opinions where members of his

race fared fairly, where the judgments were the result

of consent decrees, and where some of the parties were

represented by the Legal Defense and Educational Fund,

Inc. along with their associated counsel. (See attached

Exhibits A, B, C, D, E, F & G.) Though there are

others this Order will not be burdened by the same, save

to refer to the fact that the Order represented by Ex-

hibit G. was appealed to the Court of Appeals and af-

firmed. Other instances where members of the Black

race, the race of Mr. Buskey, have appeared before this

Court and were apparently treated fairly are reflected by

the files of this Court and are open for the public’s re-

view as it and affiant sees fit to review them.

The Court does not consider that the affidavit and the

certification by counsel is legally sufficient within the

meaning of the law. However, this Judge does not feel

that he should be the final word on the question of his

possible bias or bent of mind or passion or prejudice or

4a Order of the District Court, February 13, 1975

on the question of his ethics and is thus willing to re-

sign the final decision in this to the Almighty, posterity

‘and the Court of Appeals for the Fifth Circuit and is

more than happy to start with the Court of Appeals.

Forthe reasons expressed herein, the affidavit request-

ing this Judge to recuse himself is hereby Dentep and

the cause certified to the Court of Appeals pursuant to

28 U.S.C., §$1292(b).

Done this 13th day of February, 1975.

W. B. Harp

United States District Judge

A note should be made of Canon 8 (E.C. 8-6) and Canon 1 of

the Code of Professional Responsibility adopted by the American

Bar Association August 12, 1969 and effective January 1, 1970.

“3s

;

se |

;

Opinion of the Court of Appeals, August 21, 1975

United States Court of Appeals,

Fifth Circuit.

Nos. 74-3894, 75-1312, 74-4257

and 75-1827.

Aug. 21, 1975.

Birdie Mae DAVIS et al., Plaintiffs-Ap-

pellants, United States of America,

Plaintiff-Intervenor, Edwin Foster,

Plaintiff-Intervenor,

BOARD OF SCHOOL COMMISSION-

ERS OF MOBILE COUNTY et al.,

Defendants-Appellees.

James E. BUSKEY et al.,

Plaintiffs-Appellants,

BOARD OF SCHOOL COMMISSION.

ERS OF MOBILE. COUNTY et al.,

Defendants-Appellees.

Birdie Mae DAVIS et al., Plaintiffs,

United States of America, Plaintiff-

Intervenor, James E. Buskey, Plain-

tiff-Intervenor-Appellant,

BOARD OF SCHOOL COMMISSION-

ERS OF MOBILE COUNTY et al.,

Defendants-Appellees.

1. See Davis v. Board of School Commissioners

of Mobiie County, 430 F.2d 883, S85 n. i (Sth

Cir. 1970) (Motule IX) for citations to earlier

appeals. See also Davis v. Board of School

Commissioners of Mobile County, 483 F.2d

1017 (5th Cir. 1973) (Mobile X),; National Ed-

Appeals from the United. States Dis-

trict Court for the Southern District of

Alabama.

Before BELL, AINSWORTH and

GODBOLD, Circuit Judges.

BELL, Circuit Judge:

This is the thirteenth appeal in the

Mobile school case (Mobile XIII), which

ease began in 1963.! The questions

presented are illustrative of problems en-

eountered in winding down a school case

Some are important to the administra-

tion of final school desegregation decree.

One centers on an effort te disqualify

the district judge, The questions arise

out of four separate appeals which we

have consolidated.

The district court entered a con-

sent order on July 9, 1971 adopting a

“Somprehensive Plan for a Unitary

Schoo! System” as formulated by the

parties. That plan, and the district

ucatior Assn. v. Board of School Com nission-

ers of Mobile County, 483 F.2d 1022 (Sth Cir.

1973) (Mobiie X!}; Davis v. Buard of Schoo!

Commissivners of Mobile County, 496 §£.2d

118] (Sth Cir. 1974) (Mobile Xi/).

court consent order thereon, adopted the

following requirement of Singleton v.

Jackson Municipal Separate School Dis-

trict, 5 Cir. (en banc), 1970, 419 F.2d

1211:

“Staff members who work directly

with children, and professional staff

who work on the administrative level

will be hired, assigned, promoted, paid,

demoted, dismissed, and otherwise

treated without regard to race, color,

or national origin.”

See also Carter v. West Feliciana Parish

School Board, 5 Cir., 1970, 432 F.2d 875.

Jurisdiction of the district court con-

tinued over the matter as a class action.

Meanwhile, this court held that the prop-

er and orderly procedure to be followed

by third parties in seeking to question

deficiencies in the implementation of de-

segregation orders or for further relief

in ongeing school cases is by petition to

intervene. See Hines v. Rapides Parish

School Board, 5 Cir., 1973, 479 F.2d 762;

Lee v. Macon County Board of Educa-

tion (Conecuh County), 5 Cir., 1973, 482

F.2d 1253. Thereafter in Mobile XI, we

rejected the effort of the National Edu-

cation Association to superimpose a class

action on behalf of the black school ad-

ministrators and teachers in the system

on the pending class action. National

Education Association, supra, n. 1, 483

F.2d 1022 (NEA). In doing so, we

pointed to our prior decisions which re-

quired any complaint of discrimination

within the scope of a pending school suit

to be advanced by petition to intervene

in that case.

2. No. 75-1312 was numbered as No. 74-8484

prior to our allowing the interlocutory appeal.

No. 75-1827 was No. 75-8063 before being

allowed.

3. Buskey filed an identical motion but has not

appealed. Ir the circumstances, one appeal

will suffice to settle the question presented.

DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY.

Undaunted by these decisions, counsel

for the plaintiffs here proceeded to file

two new class actions. One was filed on

behalf of Edwin Foster, a black assistant

school principal, and another on behalf

of James E. Buskey, also a black assist-

ant school principal. Each claimed dis-

crimination in having been denied pro-

motion to principal. The district court

dismissed each suit with leave to inter-

vene in Birdie Mae Davis. Each there-

after intervened but Buskey appeals

nevertheless from the order of dismissal.

This is No. 744257.

Two of the appeals are interlocutory

and are brought under 28 U-.S.C.A.

§ 1292(b). These are Nos. 75-1312 and

75—18272 The appeals are from orders

denying the motions of Foster and Bus-

key, respectively, to disqualify the dis-

trict judge for bias under 28 U.S.C.A.

§ 1443

The other appeal, No. 74-3894, is by

the original class in Birdie Mae Davis

from an order of the district court re-

fusing to issue an order to show cause

why the defendant school board should

not be held in contempt for failure to

comply with the desegregation consent

order relative to professional promotions.

As will be seen, we find no merit in

these appeals and affirm as to each. We

do give some direction to the district

court with respect to the range of dis-

covery to be allowed in the further pro-

ceedings in the Foster and Buskey cases

on remand. It is to be remembered

that only their claims of discrimination

4. The discovery problem came up as a part of

the Foster interlocutory appeal allowed from

the denial of the motion to disqualify the dis-

trict judge.

DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. 7a

in the refusal to promote them to the

position of school principal are pending

for resolution on the merits. All other

matters before us are part of a procedur-

al tangle.

Il.

A brief chronology of the procedural!

events will assist in understanding our

disposition of the several issues.

(A) The Foster suit, filed on January

25, 1974 as a “Complaint in Interven-

tion”, sought to maintain a class action

consisting of “black persons holding de-

grees in Administration and Supervision

who have been passed over for promo-

tion solely by reason of their race and

color”. This complaint followed an earli-

er independent suit by Foster, filed Octo-

ber 5, 1973, which had been dismissed on

the authority of NEA, supra, with leave

being granted for him to intervene in

the Birdie Mae Davis case.

(B) Interrogatories were served on

March 15, 1974 by Mr. Foster on the

school superintendent in an effort to de-

velop detailed facts with respect to prin-

cipals and assistant principals as wel! as

the entire administrative and supervisory

force of the Mobile school system.

for class action determination on Febru-

ary 22, 1974. No basis for maintaining

such an action having been offered, the

court entered an order on March 25, 1974

that the matter could not be maintained

as a class action.

(D) On July 2, 1974, counsel for Foster

moved to compel answers to the earlier

filed interrogatories. A magistrate en-

tered an order on July 8, 1974 requiring

that the interrogatories be answered.

Defendants moved for reconsideration

and the district court, on July 15, 1974,

entered an order denying the motion to

compel answers with leave to Foster to

file interrogatories germane to his com-

plaint.

(E) There were two filings on July 19,

1974. The same interrogatories were

served on the school superintendent on

behalf of the Birdie Mae Davis class in

the underlying suit by co-counsel for

Foster (who, coincidentally, was one of

counsel for the plaintiffs in Birdie Mae

Davis and had only recently joined the

Foster case as co-counsel for Foster). In

addition, Foster moved for reconsidera-

tion of the order of July 15, 1974.

(F) On July 31, 1974, defendants

moved for a protective order as to the

Birdie Mae Davis interrogatories. On

the same day, the district court entered

an order denying the motion of Foster

for reconsideration, and recited, as a ba-

sis for the order, that the court had not

been made aware to date of any claim of

discrimination other than the Foster

claim. (It appears that the Buskey suit,

hereafter discussed, had been filed on

July 12, 1974. It was filed by co-counsel,

also as a separate suit rather than as an

intervention, and sought to maintain a

class action on behalf of “all past,

present and future Negro professional

employees” of the school system.)

(G) On August 8, 1974, co-counsel for

Foster, who is, as stated, one of the law-

yers representing the Birdie Mae Davis

class, attempted to reopen the Birdie

Mae Davis case through the vehicle of a

motion for an order to show cause why

the defendants, collectively and separate-

ly, should not be held in contempt for

failure to comply with that part of the

earlier consent order of the court requir-

ing appointment of the professionali staff

without regard to race or color. The

motion was based on the Foster and

Buskey claims.

(H) On August 16, 1974, the district

court granted the motion of defendants

8a DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY.

for a protective order as to the Birdie

Mae Davis interrogatories, and denied

the motion for an order to show cause in

that case.

(I) On August 23, 1974, counsel moved

for reconsideration of the August 16,

1974 order entered in the Birdie Mae

Davis phase of the litigation, or in the

alternative that it be amended to strike

therefrom statements which reflected on

counsel with regard to his efforts and

motive in seeking to avoid the class ac-

tion and discovery orders in Foster by

his use of the Birdie Mae Davis case.

This motion for reconsideration and to

strike was supported by an affidavit

from counsel in which he asserted that

as attorney for the Birdie Mae Davis

class, he had the solemn duty to insure

that the consent order was being carried

out and that he was, in effect, monitor-

ing compliance with that order. He re-

garded the Foster and Buskey claims as

establishing a need for monitoring.

(J) On September 20, 1974, the district

court. denied the motion for reconsidera-

tion and to strike. Notice of appeal

from this order was filed on October 18,

1974. (No. 74-3894.)

(K) On September 27, 1974, the dis-

trict court denied the motion of the

school board for summary judgment in

the Foster intervention.

(L) On the same day, Mr. Foster filed

a motion under 28 U.S.C.A. § 144, sup-

ported by affidavit, to disqualify Judge

Hand from his case on the basis that

Judge Hand had “a personal bias or pre}-

udice” against Foster and “other black

parents, school children and school teach-

ers in the Muvile school system as mem-

bers of the plaintiff class”. A copy of

the affidavit is appended to this opinion

and marked “A”. The affidavit makes it

clear that Foster’s affidavit is based on

his reading, at the request of his counsel,

of an opinion of the same district judge

rendered on August 29, 1974 in another

case in which counsel appeared. Robin-

son v. Union Carbide Corporation, S.D.

Ala., 1974, 380 F.Supp. 731. Judge Hand

denied the motion but allowed an inter-

locutory appeal. (This is No. 75—1312.)

(M) The Buskey suit was dismissed on

October 3, 1974, with leave to intervene

in Birdie Mae Davis. Notice of appeal

was filed on November i, 1974. (This is

No. 74-4257.)

(N) On November 20, 1974, Buskey

filed a motion and affidavit in haec ver-

ba to Foster’s, to disqualify the district

judge. The order denying this motion

gave rise to the interlocutory appeal, No.

75-1827.

III.

NO. 74-4257

As stated, only Buskey has appealed

from the order requiring intervention

rather than being allowed to proceed

with a separate suit. It is apparent,

however, that our decisions requiring

such a procedural approach were the

genesis of the overall controversy which

has arisen between counsel and the dis-

trict court. It will be well, therefore, to

consider this particular appeal as a first

issue.

Buskey seeks to avoid our hold-

ings of required intervention, supra, on

the theory that his claim is asserted un-

der Title VII of the Civil Rights Act of

1964, 42 U.S.C.A., § 2000e—5, in addition

to being based on 42 U.S.C.A., §§ 1981

ard 1983, and the consent decree. This

theory is without merit.

Intervention would not result in the

loss of substantive or procedural rights

under Title VII. It will result in better

management of the pending Birdie Mae

. dation.

DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. 9a

Davis class action. It will enable the

district court to consider Buskey’s Title

VII rights alone, as well as in conjunc-

tion with rights which may be due him

under other statutes and under the con-

sent order. Intervention will serve to

avoid a proliferation of litigation over

the same subject matter, and is within

the spirit of Rule 24(b), F.R.Civ.P.5 The

same reasoning, which supported our pri-

or decisions requiring intervention, is

supportive of requiring that a Title VII

plaintiff-school employee likewise inter-

vene. Lastly, our policy of required in-

tervention is analogous to the “iscretion-

ary power in the court to req__e consoli-

See Rule 42(a), F.R.Civ.P!

In the nature of a fallback posi-

tion, Buskey urges that at least his case

should have been consolidated with the

Birdie Mae Davis case. The difference

between consolidation and. intervention

in the context of this type proceeding is

semantical in nature—with any differ-

ence being gossamer. As an intervenor,

Buskey will be entitled to the full pano-

ply of Title VII law as it has developed

since the passage of the Act in 1964.

This means that both the Foster and

Buskey suits are pending in intervention

and are awaiting trial. This fact points

to the importance of disposing of the

5. Rule 24(b):

Upon timely application anyone ma, be

permitted to intervene in an action: .

when an applicant's claim or defense and

the main action have a question of law or

fact in common. .___..

6. Rule 42(a):

When actions involving a common ques-

tion of law or fact are pending before the

court, it may order a joint hearing or trial of

any or all the matters in issue in the actions:

it may order all the actions consolidated:

and it may make such orders concerning

proceedings therein as may tend to avoid

unnecessary costs or delay.

interlocutory appeals which were allowed

to determine the validity of the orders

denying disqualification under § 144, su-

pra.

NOS. 75-1312 AND 75-1827

The separate motions of Foster and

Buskey to disqualify Judge Hand and

the supporting affidavits will be con-

sidered as one matter. The affidavits

rest on facts brought to the attention. of

affiants by their counsel. In the main,

the claim of bias centers on problems of

counsel (Mr. Blacksher), in this litigation,

and in Union Carbide Corporation, supra,

where Judge Hand was of the opinion

that overtones of barratry and champer-

ty were present. An appeal in that case

is pending in this court. No. 75—1008—

Robinson v. Union Carbide Corporation.

That opinion speaks for itself. Whether

the district court was in error in its opin-

ion there will be decided on that appeal

and the record therein.

Bias and prejudice is also alleged by

affiants to rest on Judge Hand’s order of

August 16 wherein he granted the pro-

tective order relative to the Birdie Mae

Davis interrogatories and the contempt

motion.’

The sequence of lawyers is of impor-

tance. The Foster suit was filed by the

7. One portion of the order reflects on original

counsel in his effort to create a class action.

The portion of the order which reflects on Mr.

Blacksher is as follows:

. . . Im a not too veiled effort to

circumvent this Court's ruling thereon, [the

Foster case] plaintiff's counsel has now,

through the aegis of Birdie Mae Davis, at-

tempted to propound the same set of inter-

rogatories in an effort to elicit the same in-

formation and try to build a case on behalf

of unknown others whom this Court has not

been shown exist. Such subterfuge borders

on the edges of contempt.”

10a DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY.

lawyer for the NEA who appeared in

Lee v. Macon County Board of Educa-

tion (Conecuh County), supra; and Na-

tional Education Assn. v. Board of

School Commissioners of Mobile County,

supra. It was this lawyer who failed to

follow these decisions in filing the Foster

suit. After dismissal he filed the suit in

intervention. He filed the interrogato-

ries and attempted to impose a class ac-

tion on the Birdie Mae Davis class. He

was not a lawyer in the Birdie Mae Da-

vis cause. He was not in the Robinson

v. Union Carbide case. The affidavits of

Foster and Buskey do not assert bias and

prejudice against Judge Hand because of

any problem between this lawyer and

Judge Hand.

On July 2, 1974, Mr. Blacksher joined

as co-counsel in filing the motion to com-

pel answers to the interrogatories, and

has taken the lead in the Foster case

since that time. He is also counsel for

Buskey. The NAACP Legal Defense

Fund lawyers joined as counsel only in

the Birdie Mae Davis aspects of the liti-

gation and Mr. Blacksher is the lead

counsel in that matter. It is Mr.

Blacksher who is involved as counsel in

the Robinson v. Union Carbide case but

Judge Hand included the Legal Defense

Fund along with Mr. Blacksher in the

barratry and champerty portion of his

opinion. We will thus assume that the

charge of bias and prejudice is positioned

8. § 144:

Whenever a party to any proceeding in a

district court makes and files a timely and

sufficient affidavit that the judge before

whom the matter is pending has a personal

bias or prejudice either against him or in

favor of any adverse party, such judge shall

proceed no further therein, but another

judge shall be assigned to hear such pro-

The affidavit shall state the facts and the

reasons for the belief that bias or prejudice

on Judge Hand’s references to both Mr.

Blacksher and the Legal Defense Fund.

From these events, affiants concluded

that Judge Hand was necessarily biased

and prejudiced against them because he

was biased and prejudiced against their

lawyers, and through them, against

those represented by them. We find no

error in the refusal of Judge Hand to

disqualify himself.

Section 144 requires “personal bias or

prejudice” against a party.’ No bias or

prejudice personal to Foster and Buskey

is set out. They seek disqualification on

an imputation theory—the bias against

their lawyer is imputed to them.® Read

broadly, this peremptory challenge type

approach would bid fair to decimate the

bench. Lawyers, once in controversy

with a judge, would have a license under

which the judge would serve at their

will.

One answer is that “party” as

used in § 144 does not include counsel as

such. Cf. United States ex rel. Wilson v.

Coughlin, 7 Cir., 1973, 472 F.2d 100, 104;

Giebe v. Pence, 9 Cir., 1970, 431 F.2d 942,

943. On the other hand, there could be a

case where the cause of the controversy

with the lawyer would demonstrate bias

of such a nature as to amount to a bias

against a group of which the party was

a member—e. g., all Negroes, Jews, Ger-

mans, or Baptists. This then would be

bias of a continuing and “personal” na-

exists, and shall be filed not less than ten

days before the beginning of the term at

which the proceeding is to be heard, or good

cause shall be shown for failure to file it

within such time. A party may file only one

such affidavit in any case. It shall be ac-

companied by a certificate of counsel of

record stating that it is made in good faith.

9. No. 75-1779, Jones v. Callaway, pending in

this court on interlocutory appeal, involves a

like challenge.

DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. lla

ture over and above mere bias against a

lawyer because of his conduct.

We find no such lawyer-to-client con-

structive bias in this record. The contro-

versy is not over race but over the em-

ployment of the class action device and

its ramifications in litigation. Rule 23,

F.R.Civ.P. It is true that plaintiffs are

Negroes and that their counsel handles

civil rights cases, but the connection be-

tween the judge and the claim of bias on

behalf of the particular parties here is

too attenuated to require disqualifica-

tion.

Once the motion is filed under

§ 144, the judge must pass on the legal

sufficiency of the affidavit, but may not

pass on the truth of the matters alleged.

See Berger v. United States, 1921, 255

U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Unit-

ed States v. Roca-Alvarez, 5 Cir., 1971,

451 F.2d 843, 847-48; United States v.

Townsend, 3 Cir., 1973, 478 F.2d 1072.

The affidavits were found legallv insuf-

ficient here and we agree. The truth of

the matters alleged was not in issue.

These were in substance lawyer motions

as distinguished from party motions.

Moreover, aside from _ the

doubtful showing of persona! bias by

Foster and Buskey, they are foreclosed

for another reason. It is settled that the

requisite basis of bias and prejudice un-

der § 144 must be extra-judicial. See

United States v. Grinnell Corp., 1966, 384

U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d

778, 793; Berger v. United States, 1921,

255 U.S. 22, 31, 41 S.Ct. 230, 65 L.Ed.

481, 484. The controversy with the law-

10. Pub.L. 93-512, § 1, 88 Stat. 1609. § 455

provides, in pertinent part:

(a) Any justice, judge, magistrate, or ref-

eree in bankruptcy of the United States shall

disqualify himself in any proceeding in

which his impartiality might reasonably be

questioned.

yers in the present case was not extra-

judiciai. Rather, it was very much judi-

cial, consisting of language in an order

in the very case before the court, and in

an opinion in another case before the

court. Such statements are not available

as grounds for a § 144 affidavit. See

United States v. Board of School Com-

missioners, 7 Cir., 1974, 508 F.2d 68, 81;

Hanger v. United States, 8 Cir., 1968,

398 F.2d 91, 101; Mirra v. United States,

2 Cir., 1967, 379 F.2d 782, 787-88; Tynan

v. United States, 1967, 126 U.S.App.D.C.

206, 376 F.2d 761, 764-65; In re Union

Leader Corp., 1 Cir., 1961, 292 F.2d 381,

388. 89.

Here again, however, we think

there is an exception where such perva-

sive bias and prejudice is shown by oth-

erwise judicial conduct as would consti-

tute bias against a party. But, as stat-

ed, supra, we find an insufficient basis

for such a finding in the circumstances

presented here.

But § 144 is not the end of the matter.

The recent amendment of 28 U.S.C.A.

§ 455, to require disqualification of any

judge when “his impartiality might rea-

sonably be questioned,” also must be

considered.”

The office of the procedure un-

der § 144 is to disqualify a judge prior to

trial on motion of a party. Section 455

is the statutory standard for disqualifica-

tion of a judge." It is self-enforcing on

the part of the judge. It may also be

asserted by a party by motion in the

trial court, Rapp v. Van Dusen, 3 Cir.,

(b) He shall also disqualify himself in the

following circumstances:

(1) Where he has a personal bias or preju-

dice concerning a party,

11. Compare American Bar Assn., 1972, Code

of Judicial Conduct, Canon 3C.

12a DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY.

1965, 350 F.2d 806, 809; through assign-

ment of error on appeal, United States

v. Seiffert, 5 Cir., 1974, 501 F.2d 974;

Shadid v. Oklahoma City, 10 Cir., 1974,

494 F.2d 1267, 1268, by interlocutory ap-

peal, as here, or by mandamus, Texaco,

Inc. v. Chandler, 10 Cir., 1965, 354 F.2d

655.

The quoted language, supra, in § 455

is new to the federal law of disqualifica-

tion and we must determine whether

Congress intended to overrule the gloss

placed on § 144. and impliedly on § 455,

by court decisions that it applies only to

conduct which runs against a party and

not the lawyer, cf. United States ex rel.

Wilson v. Coughlin, supra, at 104; Giebe

v. Pence, supra, at 943; see also, Annot.,

23 A.L.R.3d 1416; and that disqualifica-

tion results from ex.a-judicial conduct

rather than from matters arising in a

judicia! context. See United States v.

Grinnell Corp., supra, 384 U.S. at 583, 86

S.Ct. 1698, 16 L.Ed.2d at 793; United

States v. Board of School Commissioners,

supra, at 81; Hanger v. United States,

supra, at 101; Mirra v. United States,

supra, at 787-88; Tynan v. United

States, supra, at 764-65; In re Union

Leader Corp., supra, at 388-89. See

generaliy, Annot. 2 A.L.R. Fed. 917.

We find no suggestion in the

legislative history that these decis.ons

were being overruled or in anywise erod-

ed. The new language was designed to

substitute the reasonable factual basis—

reasonable man test in determining dis-

qualification for the subjective “in the

opinion of the judge” test in use prior to

the amendment. Cf. Kinnear-Weed

Corp. v. Humble Oil & Refining Corp., 5

Cir., 1971, 441 F.2d 631, 635. It was also

intended to overrule the so-called duty to

sit decisions. See Edwards v. United

States, 5 Cir., 1964, 334 F.2d 360. The

abuse of sound judicial discretion test

continues to obtain on appellate review.

H.Rep.No.93—1453, 1974 U.S.Code Cong.

& Admin.News pp. 6351, 6355.

Construing §§ 144 and 455 in

pari materia we believe that the test is

the same under both. We thus hold that

an appellate court, in passing on ques-

tions of disqualification of the type here

presented, should determine the disquali-

fication on the basis of conduct which

shows bias cr prejudice or lack of impar-

tiality by focusing on a party rather

than counsel. The determination should

also be made on the basis of conduct

extra-judicia! in nature as distinguished

from conduct within a judicial context.

This means that we give §§ 144 and 455

the same meaning legally for these pur-

poses, whether for purposes of bias and

prejudice or when the impartiality of the

judge might reasonably be questioned.

Here, we have judicial activity

toward lawyers without more and the

result under §§ 144 and 455, considered

separately and together, is that we find

no error.

NO. 74-3894

This is the appeal from the or-

der denying the motion of the Birdie

Mae Davis plaintiffs for an order requir-

ing the defendants to show cause why

they should not be held in contempt for

violating the July 9, 1971 consent decree.

This is an appealabie order. Gilbert v.

Johnson, 5 Cir., 1974, 490 F.2d 827.

The motion rested for cause on

the allegations contained in the Foster

and Buskey claims. These claims are

pending and will be processed on re-

mand. The appertaining facts will be

developed. Once developed, they may or

may not be sufficient to support a show

DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY. 13a

cause order in the underlying cause. In

any event, the motion was decidedly pre-

mature when made. The district court

did not err in refusing to reopen the

Birdie Mae Davis case on the bare claims

of Foster and Buskey, either for pur-

poses of contempt or discovery.

The claim of the right to moni-

tor by discovery or more appropriately,

to have the court monitor, the 1971 de-

cree was, for the same reason, prema-

ture. (We are not told if monitoring is

being accomplished in the form of re-

porting. See, e. g., the report required

in United States v. Hinds County School

Board, 5 Cir., 1970, 483 F.2d 611, 618-

19.)

DISCOVERY ON REMAND

The Buskey case has not reached the

discovery stage but we can assume that

it is in the same posture as Foster’s. In

the early days of Foster’s case, the dis-

trict court ordered that discovery be lim-

ited to matters germane to his claim.

No further effort was made to discover

on his behalf.

It would have been and will now be

only a slight task to modify the interrog-

atories which were filed so that they

may be used on behalf of Foster and

Buskey. They are assistant principals.

They contend that they were denied pro-

motions to requested principalships.

They will be entitled to full discovery

with respect to the category of position

or positions sought in an effort to estab-

lish all statistical, policy and practice

data of relevance to their claims. The

teaching of McDonnell] Douglas Corp. v.

Green, 1973, 411 U.S. 792, 93 S.Ct. 1817,

36 L.Ed.2d 668, should be the district

court’s guide in allowing full discovery.

Affirmed.

APPENDIX A

AFFIDAVIT

STATE OF ALABAMA )}

COUNTY OF MOBILE i “

Edwin Foster, being first duly sworn,

deposes and says as follows:

I am a plaintiff-intervenor in the

above-styled cause and am filing this Af-

fidavit pursuant to 28 U.S.C. § 144 to

request that the Honorable W. Brevard

Hand disqualify himself from presiding

over any and all proceedings in this ac-

tion on the grounds that he has a per-

sonal bias or prejudice against me and

other black parents, school children and

school teachers in the Mobile schocl sys-

tem as members of the plaintiff class.

This action was commenced in 1963

thr th the filing of a complaint seeking

the desegregation of the public schools in

the City of Mobile. Until 1971, the case

was presided over by the Honorable

Daniel Thomas, who _ subsequently

retired. Following a remand of this case

from the Supreme Court of the United

States in June of 1971, a consent decree

was entered instituting a plan for ihe

desegregation of the schools in the city

of Mobile. Subsequent to the entry of

that decree a variety of other matters

have arisen in the case. There is pres-

ently pending before the Court a motion

for summary judgment relating to the

complaint in intervention filed by Edwin

Foster, a motion for reconsideration of

an order awarding attorney’s fees and

other matters regarding implementation

and evaluation of the desegregation

plan.

On September 26, 1974, at the request

of my counsel, J. U. Blacksher, Esq., I

read for the first time the opinion of

Judge Hand rendered on August 29,

l4a

1974, in Robinson v. Union Carbide

Corp., D.C.Cir., 380 F.Supp. 731 a copy of

which is attached hereto. At the same

time, my counsel also called my attention

to the Order entered by Judge Hand in

the present case on August 16, 1974, re-

lating to a Motion for Protective Order

and a Motion to Show Cause. In that

order various allegations were made con-

cerning said counsel and concerning the

wishes of members of the class and the

parties to this litigation. On September

20, 1974, Judge Hand denied our motion

to strike these allegations. On informa-

tion and belief, and based upon a read-

ing of the above-mentioned opinion and

order, Judge Hand is biased and preju-

diced against me personally because I

am a person seeking redress of violations

of my civil rights through an action in

Federal Court. In particular, Judge

Hand is biased and prejudiced against

anyone or any group of persons includ-

ing myseif, presenting such claims

through attorneys employed by and/or

associated with the N.A.A.C.P. Legal De-

fense and Educationa! Fund, Inc., in that

Judge Hand believes and has in fact

formed the opinions through extra-judi-

cial sources:

1. that persons who are plaintiffs in

such actions do not have valid grievances

but have been solicited to present un-

warranted claims;

2. that claims are not presented by

the above attorneys in good faith but

rather for invalid and unconscionable

purposes; and

DAVIS v. BD. OF SCH. COM’RS OF MOBILE CTY.

3. that I and other black persons as-

sisted by the above attorneys should be

watched with suspicion as being capable

of causing other black people in the com-

munity to engage in “concerted efforts,”

such as the manipulation of employment

applications.

The result of these firmly held opin-

ions by Judge Hand is that he cannot

and will not judge my claims on the

merits and according to the law but will

decide them adversely regardless of the

facts adduced at trial and regardless of

the law. These opinions that he has

formed concerning such claims and con-

cerning the actions and motives of the

attorneys presenting such claims do not

allow him to have impartiality of judg-

ment.

This Affidavit was not filed earlier be-

cause until the date set out above I had

not read the decision in the Robinson

case.

s/ Edwin Foster

Subscribed and sworn to before me on

this the 26th day of September, 1974.

s/ Barbara Matthews

NOTARY PUBLIC,

MOBILE COUNTY, ALABAMA

I am one of the attorneys representing

Edwin Foster in this cause. I certify

that this affidavit is made in good faith.

s/ J. U. Blacksher

J. U. BLACKSHER

l5da

Order Denying Re? -aring

UNITED STATES COURT OF APPEALS

Firta Crrcvit

OFFICE OF THE CLERK

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

TELEPHONE 504-589-6514

October 2, 1975

To Att CounseL or REcorD

No. 75-1312—Birdie Mae Davis, et al; U.S.A.; Edwin

and Foster & James E. Buskey vs. Board of

No. 75-1827 School Commissioners of Mobil County,

et al.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition ( ) for rehearing, and no member

of the panc’ nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en bane (Rule 35, Federal Rules of Appellate

Procedure: Local Fifth Cireuit Rule 12) the petition ( )

for rehearing en banc has also been denied.

l6a ; : :

Order Denying Rehearing

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

Epwarp W. Wapsworts, Clerk

by Cuare F. Sacus

Deputy Clerk

ee:

Mr. J. U. Blacksher

Mr. Charles Stephen Rolston

Messrs. J. Stanley Pottinger

Brian K. Landsberg

Ms. Judith E. Wolf

Mr. Abram L. Phillips

17a

Order of the District Court, March 22, 1973

In THE

UNITED STATES DISTRICT COURT

For THE Mippie District oF ALABAMA

NorTHERN Division

Crvit Actiox No. 3809-N

Axtrrepo G. ParrisH, ET. AL.,

Plaintiffs,

vs.

Boarp or ComMMISSIONERS OF

THE AraBaMa State Bar, ET Ab.,

Defendants,

This cause is now submitted upon the following motions:

1. Defendants’ motion to compel answers to interroga-

tories filed February 9, 1973.

2. Defendants’ motion to require further answer to

interrogatory filed February 9, 1973.

3. Plaintiffs’ motion to compel further answers to inter-

rogatories filed January 26, 1973.

4. Plaintiffs’ motion for reconsideration of order of

January 15, 1973, filed January 25, 1973.

5. Affidavit of disqualification filed January 19, 1973,

by Plaintiff, Henry L. Thompson, said affidavit being con-

sidered by this Court as a motion to recuse.

18a = Order of the District Court, March 22, 1973

Upon consideration of said motions and hearing held

thereon March 20, 1973, it is the Orper, JupcMEeNnT and

Decree of this Court as follows:

A. Defendants’ motion to compel answers to interroga-

tories be, and the same is hereby, granted. It is further

OrvereD that Plaintiff Parrish must answer said interroga¢

tories by March 30, 1973, or he will be dismissed as a party

Plaintiff.

B. Defendants’ motion to require further answer to

interrogatory be, and the same is hereby, granted. It is

further Orperep that Henry Thompson must answer said

interrogatory No. 4 by March 30, 1973, or he will be dis-

missed as a party Plaintiff. Pursuant to Rule 37, Federal

Rules of Civil Procedure, it is further Orperep that Henry

Thompson pay $25.00 to the Clerk of this Court for dis-

bursement to the Alabama State Bar, said money to be

used for attorney’s fees.

C. Plaintiffs’ motion to compel further answers to inter-

rogatories be, and the same is hereby, denied as moot.

D. Plaintiffs’ motion for reconsideration of order of

January 15, 1973, be, and the same is hereby, denied.

E. Henry L. Thompson’s affidavit of disqualification

(motion to recuse) be, and the same is hereby, denied.

Done this 22nd day of March, 1973.

R. E. Varner

United States District Judge

19a

Opinion of the Court of Appeals, December 2, 1974

Atrrepo G. Parrisn et al., etc., Plaintiffs-Appellants,

Boarp or Commissioners or the AvaBamMa State Bar

et al., ete., Defendants-Appellees.

AvaBAMA Biack Lawyers Association et al.,

Plaintiffs-A ppellants,

Vv.

Boarp or Commissioners or the AtaBamMa State Bar

et al., etc., Defendants-Appellees.

Nos. 73-3553, 74-1523.

United States Court of Appeals,

Fifth Circuit.

Dec. 2, 1974.

Appeals from the United States District Court for the Middle

District of Alabama.

Before TuTTLeE, Wispom and Ger. Circuit Judges.

TuTT.e, Circuit Judge:

The Alabama Black Lawyers Association (ABLA) and eight

named plaintiffs appeal the grant of summary judgment against

them on all issues in their class action alleging racial dis-

crimination by the Boards of Commissioners and Bar Ex-

20a PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR

aminers of the Alabama Bar Association in their policies and

practices governing admission to the bar.

- Briefly stated, the suit sought injunctive and declaratory

relief, under 42 U.S.C. §§ 1981-1983 and 28 U.S.C. §§ 2201-

2202, respectively, for a class defined as “all Black persons

who have applied or will apply for admission to the Alabama

Bar, or who would have so applied but for having been

discouraged or prevented from doing so by the [defendants’]

discriminatory practices” and who meet all valid non-discrimi-

natory standards for admission. The gist of the complaint,

which was filed October 31, 1972, is that the Alabama bar

examiners unconstitutionally discriminated against black ap-

plicants by identifying their supposedly anonymous examina-

tion papers and then grading them lower than white appli-

cants who displayed equal proficiency. The complaint also

alleged that the bar examination—which then ' was exclusive-

ly written essay, “timed and closed-book”—is “unvalidated”

and not sufficiently “job-related”, and thus unconstitutional

because it fails blacks in disproportionately high numbers

compared to whites.

Shortly after the complaint was filed, each party filed

several motions. Most importantly, the defendants moved to

dismiss plaintiffs Eddie Jones, Thomas W. Gray and the

ABLA for lack of standing, and the plaintiffs moved that the

trial judge recuse himself pursuant to 28 U.S.C. § 144. The

trial judge granted defendants’ motion to dismiss Jones, Gray

and the ABLA, but refused—after a hearing had been held

and affidavits filed—to recuse himself.

Both parties undertook extensive discovery. Plaintiffs re-

ceived nearly 150 pages of answers to interrogatories from

defendants and took two lengthy depositions from members of

the Board of Bar Examiners. Defendants received answers to

interrogatories from each of the named plaintiffs. None of

1. Since July 25, 1973, Alabarna has used the Multistate Bar Exami-

nation (MBE) as part of its own bar examination. The MBE is an

“objective,” multiple-choice type of test.

PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR 21a

the discovery revealed specific instances where the anonymity

of the examinees had been compromised; at most, the plain-

tiffs swore that there were one or two instances when an

examiner could have seen an examinee’s test number. The

plaintiffs’ case thus boiled down to a proof of statistics.

Statistics produced during the litigation showed, for example,

that in the last ten bar examinations the passing rate for

blacks had been 32% while it had been 70% for whites.

Furthermore, in a state whose population is 25% black, the

number of black lawyers is less than 1%.

Defendants moved for summary judgment on April 2, 1973,

but the trial court withheld a ruling for over four months in

order to give plaintiffs “ample opportunity to obtain by dis-

covery facts to be used in traversing the motion”. Plaintiffs

accomplished all of their desired discovery during this period,

with one exception: defendants failed to produce copies of all

answer sheets for the February 1973 bar examination. De-

fendants objected to producing these documents on the

grounds that they were not relevant and material to the

complaint. Plaintiffs filed a motion on May 28, 1973, to

compel production.

Without specifically ruling on this motion, the trial court

entered summary judgment for defendants on all issues on

August 21, 1973. The court found that there was no material-

issue of fact between the parties and held that “under the

circumstances . . ._ the disparity in percentage of fail-

ures among blacks as compared to whites has little weight and

fails to make out a prima facie case sufficient to realign the

burden of proof so as to require the Defendants to establish

that the exams are not discriminatory or so as to require them

to validate the exams.”

With respect to plaintiffs’ other main contentions, the court

held that the defendants had a compelling state interest to

identify attorneys, and thus that requiring applicants to sub-

mit photographs ef themselves prior to taking the examina-

tion does not “violate their constitutional rights”; however,

22a PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR

the court declined to consider the constitutionality of proce-

dures (particularly a personal interview) applied to applicants

petitioning to take the exam for a fourth time, following

three attempts as of right, because “no Plaintiff in this

lawsuit has the standing to raise the question”.

Appellants’ points of appeal are:

1) that the trial judge applied an erroneous legal standard

in refusing to recuse himself;

2) that plaintiffs Jones, Gray and the ABLA should not

have been dismissed from the suit for lack of standing;

3) that summary judgment was inappropriate, because dis-

covery was incomplete and there were material issues of fact;

4) that the unvalidated bar examination, which fails blacks

in disproportionately high numbers, is insufficiently job-relat-

ed to be constitutional;

5) that the requirement of a photograph, as part of the

application to take the bar examination, is unconstitutional;

6) that the procedures governing petitions to take the bar

examination for a fourth time are arbitrary and capricious,

and thus violate the appellants’ right to cue process of Jaw.

Because we conclude that the appellants should prevail on

their first ground, we discuss only that and the question

relating to the parties to appeal.

I. PARTIES TO APPEAL

Before discussing appellants’ contentions, it is necessary to

dispose of a jurisdictional objection raised by the appellees in

their brief. Appellees argue that only appellants Alfredo

Parrish and Henry Thompson are properly before this Court,

because the plaintiffs’ notice of appeal and amended notice of

appeal expressly named only Parrish and Thompson. How-

2. Strictly speaking, the plaintiffs’ appeal is also technically defective

because it is taken from the order of the trial court and not from a

judgment “set forth on a separate document” as required by the

PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR 23a

ever, although Parrish and Thompson are the only parties

named in the text of the notices, the captions of the notices

named “ALFREDO G. PARRISH, ET AL., Plaintiffs.”

[1,2] The Federal Rules of Appellate Procedure require

that “The notice of appeal shali specify the party or parties

taking the appeal.” Rule 3(c). The objective of this provi-

sion, and of Rule 3 generally, is two-fold: to notify the Court

of the taking of an appeal, and to notify the opposing party of

the taking of the appeal. Cobb v. Lewis, 488 F.2d 41, 45 (5th

Cir. 1974). There can be no doubt that the caption, if not

necessarily the text, put defendants on notice that all of the

plaintiffs intended to take appeal. Appellees have not shown

that they were prejudiced or mis-led in any way by appellants’

technical non-compliance with Rule 3(c).

[3] Although some other circuits may take a much more

formalistic view,* this Court has long held that irregularities

in form or procedure in filing a notice of appeal will be

disregarded, when the interests of substantive justice requires

it, as long as there is “substantial compliance with the rules.”

Des Isles v. Evans, 225 F.2d 235, 236 (5th Cir. 1955). See also

Crump v. Hill, 104 F.2d 36, 37-38 (5th Cir. 1939); Jones v.

Chaney & James Construction Co., 399 F.2d 84, 86 (5th Cir.

1968); Cobb v. Lewis, supra, 488 F.2d at 44-46. As we said in

Jones, 399 F.2d at &6:

“The notice of appeal . . . should not be used as a

‘trap for unwary draftsmen’, Wright, Federal Courts, § 104

at 406 (1963); and decisions on merits should not be avoided

on the basis of ‘mere technicalities’, Foman v. Davis, (1962)

371 U.S. 178, 181 [83 S.Ct. 227, 9 L.Ed.2d 222).”

Federal Rules of Civil Procedure, Rule 58 (as amended July 1, 1963).

This defect is not fatal: we assumed jurisdiction in identical circum-

stances in Markham v. Holt, 369 F.2d 940, 942 (5th Cir. 1966).

3. Cook and Sons Equipment, Inc. v. Killen, 277 F.2d 607, 609 (9th

Cir. 1960); Van Hoose v. Eidson, 450 F.2d 746, 747 (6th Cir. 1971).

Compare Knuth v. Erie-Crawford Dairy Corp. Association, 395 F.2d

420, 427-428 (3rd Cir. 1968).

24a PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR

Therefore, we hold that there was adequate compliance

with Rule 3(c) to put the defendants on notice that all

plaintiffs intended to appeal, and that all eight named plain-

tiffs and the ABLA are properly before this Court. Accord-

ingly, we proceed to the merits.

Il. STANDARD FOR RECUSAL

The first point raised by appellants is that the trial judge

applied an erroneous legal standard in refusing to recuse

himself after an affidavit had been filed pursuant to 28 U.S.C.

§ 144. Section 144 provides in full:

“Whenever a party to any proceeding in a district court

makes and files a timely and sufficient affidavit that the

judge before whom the matter is pending has a personal

bias or prejudice either against him or in favor of any

adverse party, such judge shail proceed no further therein,

but another judge shall be assigned to hear such proceeding.

“The affidavit shall state the facts and the reasons for

the belief that bias or prejudice exists, and shall be filed not

less than ten days before the beginning of the term at

which the proceeding is to be heard, or good cause shall be

shown for failure to file it within such time. A party may

file only one such affidavit in any case. It shall be accom-

panied by a certificate of counsel of record stating that it is

made in good faith.”

The procedure prescribed by section 144 was not strictly

followed in this case. It appears from the record that counsel

for the appellants and the trial judge informally discussed the

question of recusal over a month after the complaint was

filed. The court later convened a hearing on December 22,

1972, to discuss the question. The judge permitted plaintiffs’

counsel to question him at length at this hearing, after stating

to counsel:

“Heretofore I had felt that a judge should recuse himself

very quickly because it made the court appear more fair,

PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR 20a

. but there are other obligations the court owes and I am

afraid that I shan’t recuse myself but I want to give you an

opportunity to put anything on record that you would like

to put on record.”

The section 144 affidavit was not filed until January 19, 1973.

Without entering a formal order, the trial judge concluded

that he should hear the case. Since it is apparent that the

facts recited in the affidavit were developed to some extent

from the preceding hearing, it is necessary to consider both

the affidavit and the hearing in determining whether legally

sufficient facts were presented to warrant recusal.

The affidavit was filed by plaintiff-appellant Thompson,

who alleged two facts and reasons for his belief that the trial

judge, Judge Robert E. Varner, had personal bias and preju-

dice in connection with the proceedings: ‘

4. The affidavit, which includes the requisite certificate of good faith

signed by one of plaintiff-appellant’s counsel, reads in pertinent

rt:

- oe o es 6 6 s . os o eo

“3. The facts and reasons for the belief that such personal bias

and prejudice exist are as follows:

a. The instant action complains, inter alia, that the defendants

maintain a policy of excluding blacks from the practice of law

in the State of Alabama. The Honorable Robert E. Varner is

presently a member of the Montgomery County (Alabama) Bar

Association; and when he served as President of that Associa-

tion two years ago, black lawyers were excluded from member-

ship in the said association under terms of its by-laws. The

Honorable Judge Varner was then acquainted with five or six

black lawyers who then practiced in Montgomery; but he never

made an effort to invite them to join the Association. It was

only after the aforesaid judge became interested in a federal

judgeship that he, as president of the Montgomery County Bar

Association, appointed a committee to revise the said by-laws;

and the record is unclear as to whether the ‘white only’

membership clause of the Montgomery County Bar Association

was removed during his tenure as president of the aforesaid

association.

b. None of the plaintiffs in this case are personally acquainted

with the Honorable Robert E. Varner. The said judge considers

the defendant commissioner Hill as a personal friend; he is a

friend of Reginal Hamner, one of the chief defendants in the

case; he is a friend of John Scott, defendant Hamner's prede-

268 PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR

.) that while Judge Varner was President of the Montgom-

ery County Bar Association two years ago, the Association

had a clause in its by-laws barring black members and that

the judge never made any effort to invite black lawyers whom

he knew to join; ©

2) that Judge Varner was acquainted with several defend-

ants in the suit and all of defendants’ counsel, and that he said

he did not believe that any of the defendants whom he knew

would intentionally misrepresent any of the matters related to

the lawsuit.

In support of his affidavit, Thompson appended a transcript

of the preceding hearing.

Both of the grounds for recusal set out in the affidavit were

fully developed at the hearing. Judge Varner stated that he

first became aware of the “whites only” clause in the by-laws

of the Association when it was mentioned in a newspaper

article speculating on the possibility of his appointment to a

federal judgeship. Counsel for the appellants, Mr. Clemon,

asked the judge if he then recommended removal of the

clause, and the following dialogue ensued:

“THE COURT: My recollection is that I did not recom-

mend anything but that I appointed a committee for a

consideration of renovationof . . . the by-laws.

Frankly, when I looked at it I was appalled how out of date

cessor in office and proposed to be called by the plaintiffs as an

adverse witness; he is also a friend of counsel for all of the

defendants. Further the said judge is personally acquainted

with many of the other defendants in this cause Although the

testimony of the witnesses at the trial of this cause is expected

to be conflicting in nature, the aforesaid Judge Varner has

indicated that he does not believe that any of the defendants

with whom he is acquainted would intentionally misrepresent

any of the matters related to this lawsuit. Thus, plaintiffs

sincerely believe that where the judge is called upon to make

credibility choices throughout the trial, as he will be, he will

attach undue weight to the testimony of his friends and ac-

quaintances, all to the detriment of the plaintiffs and the class

which they represent.” :

PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR 278

the whole thing was, not just to racial matters. . . . |

believe there were several things in the . . . by-laws

that drew my attention and really shocked me.

And I did not make any recommendation about it but I did

appoint a committee to consider it, and the by-laws, as I

recall it, were changed. ,

. “MR. CLEMON: After you appointed that committee did

it make a report during your tenure in office?

“THE COURT: Oh, yes.

“MR. CLEMON: It did?

“THE COURT: Yes.

“MR. CLEMON: Do you recall what recommendations if

any were made with respect to the racially exclusionary

clause?

“THE COURT: Yes. It was removed.

“MR. CLEMON: During your tenure as president?

“THE COURT: Well, I am speaking from recollection.

It may have been after my tenure; but I think it was

during my tenure. I am not sure.”

During other discussions at the hearing, Judge Varner

stated that he personally knew ten of the thirteen defendant

bar examiners. He said that of the ten, he knew three only

“slightly”. He added that he did not know three of the other

examiners at all. He admitted that he has known defendant

Reginald Hamner, who is secretary of the bar association and

of the board of bar examiners,* “ever since he became associ-

ated with the bar association.” Mr. Clemon asked what effect

5. Mr. Hamner, as secretary of the bar association and the Board of

Bar Examiners, was the official in whose custody were all of the

papers relating to the bar examinations. He had the application

with pictures attached; he assigned the identifying numbers to the

examinees, and he received the completed examinations before

distributing them to the examiners for grading. He did not testify in

person, but submitted an affidavit to the effect that he did not take

advantage of this potential means of identifying the examinees by

race.

288 paRRISH v. BOARD OF COM’RS OF ALA. STATE BAR PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR 29a

these friendships or acquaintanceships would have on the

think he would try to tell you the truth in his answers. But if

judge’s conduct of the trial:

“MR. CLEMON: Judge, do you think that in the event

there was testimony—conflicting testimony involving a wit-

ness whom you didn’t know and one of the defendants

whom you have indicated that you do know, slightly or

otherwise, that there might be any problem in your attach-

ing more weight to the testimony of the person asa! you

know rather than the person that you did not know’

“THE COURT: Well, it would depend qn who the person

I did not know, maybe, and what the evidence shows. I will

say this, of the people I know here, I have no reason to

think any of them would intentionally misrepresent any-

thing. I am sure there will be some mistake in recollection,

and certainly 1 would expect most witness to make a few

mistakes in their recollection if the testimony becomes

complicated.

“MR. CLEMON: Yes, sir.

“THE COURT: But I do not think I would have any

prejudice or bias about that matter. Certainly—or any

other matter for that matter, frankly. I have thought

about the matter thoroughty, and I don’t think that there is

any reason why I can’t fairly judge this case.

At another point, Mr. Clemon asked J udge Varner whether

his friendship for over twenty years with former bar associa-

tion secretary John Scott would influence the weight to wen

he might attach to Scott’s testimony.’ Judge Varner replied:

“I don’t think so. I will say this, I think Mr. Scott is an

honorable man but I don’t think his memory is infallible. I

7 d

, t was secretary of the state bar association and the Boar

7 pits tae until approximately four years ago, SS was

replaced by Mr. Hamner. In those capacities, Mr. —" pe —

the same duties as outlined in footnote 5, ‘supra. ro =

testimony would have been relevant to the plaintiffs assertion —

the defendants maintained a longstanding practice and ta

racial discrimination in procedures governing admission to t ,

ar ree eet te Reese eae a

he appeared to evade I think I could detect it.”

Thus, in summary, we have a challenge to the judge as-

signed to try this cae alleging discrimination on account of

race in the grading of bar examinations on the basis of the

following factual setting: the lawyer for the plaintiffs and

counsel for the defendants had held conversations off the

record in the judge’s chambers, apparently discussing the

doubts that were in the minds of plaintiffs.’ At this time no

affidavit under section 144 had been filed. In effect, plain-

tiffs were undertaking to develop a basis for determining

whether to file such an affidavit. The hearing conducted was

in the form of questions and answers put to the judge by Mr.

Clemon, counsel for the plaintiffs. This hearing developed the

fact that the judge had been president of the Montgomery

Bar Association shortly prior to being appointed to the bench

and that at the time the rules of the Association forbade

admission of black lawyers. When comment had been made

in the public press about this fact and of Judge Varner’s being

considered for appointment to the United States Court, he

appointed a commission to review the bar association by-laws,

but gave no direction or suggestion that the racial restrictions

be changed. They were subsequently changed, at a time

which the judge thought was during his term of office, but as

to this he was not certain. Judge Varner was acquainted with

7. The transcript shows the following:

“Gentlemen, you may want to have a seat at counsel table. |

asked my court reporter to stay here this morning because, Mr.

Clemon, (counsel for plaintiffs) | thought perhaps vou would like

to put some elements of our conversation on the record in regard

to your question of whether or not I should recuse myself. 1 will

have to say that I decided in cases earlier this week that these

courts have been very reluctant about letting judges recuse them-

selves and | have really changed my attitude about it in the last

two or three weeks. Heretofore, | had felt that a judge should

recuse himself very quickly because it made the court appear

more fair, but there are other obligations that the court owes and

I am afraid that I shan't recuse myself but | want to give you an

opportunity to put anything on record that you would like to put

on record.” (Emphasis supplied).

30a PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR

ten of the thirteen defendants who were members of the

Board of Bar Examiners, three only slightly and several on a

basis of what he considered friendship. Three of them he did

not know at all. When asked as to the effect of his acquain-

tance or friendship with defendants in the event of a possible

conflict in testimony in the anticipated hearings, Judge Var-

ner, by the language quoted above, indicated a strong feeling

of confidence in the veracity and trustworthiness of his

friends. When asked expressly with respect to Mr. Scott, who

had previously been secretary of the commission, and thus the

one person who had custody of all of the documents, she

expressed similar confidence in his likely credibility, noting

that “if [Scott] appeared to evade I think I could detect it.

Upon subsequently filing the affidavit, plaintiffs attached a

transcript of the hearing before Judge Varner, so that we

consider the section 144 affidavit to include all of the facts

which are recited above. Interestingly enough, by the time

the affidavit was filed in January, 1973, Judge Varner had, in

effect, already decided the issue. For, as noted above he

stated, before the facts were developed, “I am afraid that I

shan’t recuse myself but I want to give you an opportunity to

put anything on record that you would like to put on record.

This sounds very much as though he was intending to permit

the plaintiffs to build up a record for appeal, having already

decided the matter on the merits against recusing himself.

This statement, having been made prior to the filing of the

affidavit, must be considered as one of the “facts and reasons

for the belief that bias or prejudice exists” within the lan-

guage of section 144.

[4,5] Entirely aside, however, from the apparent prejudg-

ment of the issue just mentioned, we conclude that the other

8. It is of significance that none of these persons appeared to testify

personally. The motion for summary judgment was based solely

upon their affidavits. There, of course, were no opportunities to

make any credibility choices by use of the normal standards availa-

ble to a trial judge.

PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR 3la

facts stated in the affidavit, and supported by the testimony

of the hearing, taken as true, as they must be, for the purpose

of the judge’s consideration of the motion, Berger v. United

States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921) are

legally sufficient to give “fair support to the charge of a bent

of mind that may prevent or impede impartiality of judg-

ment.” Berger, supra, 255 U.S. at 33-34, 41 S.Ct. at 233.

[6] The applicable standards for determining the legal

sufficiency of the affidavit provided under section 144 are

definitively set out in the Berger case. The Court at 32 of 255

U.S., at 232 of 41 S.Ct., quoted from an opinion of this Court

in Henry v. Speer, 201 F. 869 (5th Cir.) which said:

“Upon the making and filing by a party of an affidavit

under the provisions of section 21 [predecessor of section

144], of necessity there is imposed upon the judge the duty

of examining the affidavit to determine whether or not it is

the affidavit specified and required by the statute and to

determine its legal sufficiency. If he finds it to be legally

sufficient then he has no other or further duty to perform

than that prescribed in section 20 of the Judicial Code. He

‘s relieved from the delicate and trying duty of deciding

upon the question of his own disqualification.” (Emphasis

supplied).

The Court then explains what it means by “legal sufficiency”.

Speaking again of the definition in Henry v. Speer, supra, the

Court said at 33-34 of 255 U.S., at 233 of 41 S.Ct.:

“It is a precaution against abuse, removes the averments

and belief from the irresponsibility of unsupported opinion,

and adds to the certificate of counsel the supplementary aid

of the penalties attached to perjury. Nor do we think that

this view gives room for frivolous affidavits. Of course the

reasons and facts for the belief the litigant entertains are

an essential part of the affidavit, and must give fair sup-

port to the charge of a bent of mind that may prevent or

impede impartiality of judgment.” (Emphasis supplied).

32a PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR

The Berger case was decided by the Supreme Court on a

certified question from the Court of Appeals for the Seventh

Circuit, and was designed expressly and explicitly to answer

the very question that is presented here. The language of the

section’ clearly suggests that the belief of the affiant if

supported by the facts he or she swears to, is crucial and thus

that the test of the affidavit’s legal sufficiency should be

whether the facts alleged could reasonably lead to the belief

that the affidavit says exists in the minds of the plaintiffs.

Berger supports this approach. See Note, Disqualification of

Judges for Bias in the Federal Courts, 79 Harv.L.Rev. 1435,

1446-47 (1966)." It is true that some post-Berger cases have

adopted a different test, one that would virtually require that

the facts—taken, of course, as true—are sufficient to demon-

strate a personal bias or prejudice in fact on the part of the

trial judge for or against one of the parties."

The only case in this Circuit that discusses the matter is

Simmons v. United States, 89 F.2d 591 (10 Cir., 1937), upon

which the appellees here rely. In Simmons, the affiant al-

leged that the trial judge had represented a potential witness

and the relative of a potential witness, and that the trial

judge was “friendly [sic] inclined” toward them. The Court

held: “However, it is settled that an affidavit of disqualifica-

tion under the section must state facts showing the personal

prejudice of the judge against the defendant and not baseless

conclusions.” 89 F.2d at 592. This formulation of the ruie is

correct, as far as it goes. However, it fails to distinguish

9. I. e., “The affidavit shall state the facts and the reasons for the

belief that bias or prejudice exists . . . (Emphasis added).”

10. “A formulation . . . in keeping with the purpose of the

statute would require only that the facts alleged must justify a

reasonable apprehension on the part of the affiant that the judge

may be biased [Footnote omitted]. This formulation shifts the

emphasis from the judge’s actual state of mind to the reasonable-

ness of the litigant’s fear, an emphasis at least supported, and

possibly required, by the statutory language . . .”

11. See Note, Disqualification of a Federal District Judge for Bias—

the Standard under Section 144, 57 Minn.L.Rev. 749, 758 (1973).

PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR 33a

between testing the facts to see if they 1) support the reason-

ableness of the affiant’s belief, or 2) reasonably support a

determination that bias or prejudice in fact exists. Because

the language in Simmons does not rule out the possibility of

the first interpretation, we therefore think there is no

precedent in this Circuit which holds that the affidavit must

be measured for sufficiency by a standard of actual, rather

than the existence of a reasonable belief in, bias or prejudice

on the part of the trial judge. Thus, Simmons fails to provide

the necessary guidance for determining completely the issue

before us.

More instructive, it seems to us, as to the attitude that

should be taken with respect to the treatment of a claim of

bias or prejudice is the decision and language of this Court in

United States v. Columbia Broadcasting System, Inc., 497 F.2d

107 (5th Cir. 1974). Although that case dealt with the trial by

a judge who had ordered contempt charges filed against the

respondent, the guarantee to a party of a fair and impartial

tribunal, as stated in that case are no different than they are

here. The court said at 109:

“The recondite niceties of contempt law coupled with the

strange milieu of a judge passing on the clarity of his own

orders, which had to be substantiated largely by his own

legal staff, should make us particularly sensitive to the

demands of justice, and more particularly, to the appear-

ance of justice. The guarantee to the defendant of a totally

fair and impartial tribunal, and the protection of the integ-

rity and dignity of the judicial process from any hint or

appearance of bias is the palladium of our judicial system.”

(Emphasis supplied).

We conclude that a trial’ court cannot be free from “any

hint or appearance of bias” unless a party’s sworn belief of

the existence of bias, supported by substantial facts, is of

primary ecrcern. Thus, we reject as invalid the so-called

objective test.”

i2. See footnote 11, supra.

348 PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR

[7] In summary, it was not the function of the trial court

to weigh the facts, largely developed by his own testimony

when relating his relationships with the Montgomery Bar

Association and with some ten of the defendants. Under the

standards long ago set down in this Circuit, and adopted by

the Supreme Court in Berger, his only function under section

144 was to determine whether the facts asserted gave “fair

support to the charge of a bent of mind that may prevent or

impede impartiality of judgment.” [Emphasis supplied.] As

stated in Henry v. Speer, supra, and reiterated by the Su-

preme Court in Berger, supra, “He is relieved from the

delicate and trying duty of deciding upon the question of his

own disqualification.” 255 U.S. at 32, 41 S.Ct. at 232.

The judge’s preliminary statement that he “was afraid that

I shan’t recuse myself” and his repetition twice subsequently,

when commenting on the problem arising from his friendship

with some of the defendants, of his opinion that he was

neither biased nor prejudiced and that there was nothing to

prevent him from trying the case fairly, all as set out above,

make it clear beyond a doubt that the court believed it was his

duty to decide the issue as to whether or not he was actually

biased, rather than to restrict his consideration to the question

whether there was a reasonable basis alleged for the belief of

the plaintiffs or even that there was a reasonable basis for the

charge that he was in fact prejudiced for or against one of the

parties.

While we deeply regret the necessity of further proceedings

in a case which has been argued fully on the merits in this

Court, we are required to give proper attention to the appel-

lants’ initial contention that the trial court used an improper

standard in determining whether he should recuse himself.

Having concluded that a mistaken standard was used, in that

the trial judge did not address himself at all to the question of

the sufficiency of the allegations, we conclude that the judg-

ment must be reversed. Moreover, we are satisfied that the

affidavit and the supporting facts, as here outlined, do meet

PARRISH v. BOARD OF COM’RS OF ALA. STATE BAR 35a

the standard of section 144 and that under the circumstances

the trial judge had no course of action but to follow the

procedure set out in the statute, which says that under such

circumstances “such judge shall proceed no further therein,

but another judge shall be assigned to hear such proceeding.”

The judgment is reversed and the case is remanded for

further proceedings not inconsistent with this opinion. |

36a

Opinion of the Court of Appeals, December 4,1975 37a

Opinion of the Court of Appeals, December 4, 1975

Bewi, Circuit Judge:

This appeal involves one assignment of error directed

to the denial of a motion, filed pursuant to 28 U.S.C.A. § 144.

to disqualify the district judge who decided the matter.

There are other assignments of error arising from the

merits of the suit which claimed discrimination in the ad-

ministration of the Alabama bar examination.’ We con-

sider en bane only the assignment of error having to do

Aurrepo G. Parrisx et al., etc., Plaintiffs-Appellants,

Boarp or Commissioners or the AvaBaMa State Bar

et al., etc., Defendants-Appellees.

AvanamMa Buiack Lawyers Association et al.,

Plaintiffs-Appellants,

Vv.

Boarp or Commissioners or the ALaBAMa State Bar

et al., etc., Defendants-Appellees.

Nos. 73-3553, 74-1523.

United States Court of Appeals,

Fifth Cireuit.

Dec. 4, 1975.

Appeals from the United States District Court for the

Middle District of Alabama.

Before Brown, Chief Judge, and Tuttie, Wispom, Gewry,

Bett, THorNBERRY, CoLeMAN, GoLpBerc, ArnswortH, Gop-

BoLD, Dyer, Srmpson,* Morcan, Cuark, Roney and Gee,

Circuit Judges.

* Judge Simpson did not participate in this matter. ‘There is no merit whatever in the jurisdictional objection of

appellees.

38a PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR

with disqualification? As will be seen,

we find no error in the denial of the

motion to disqualify, and thus the cause

will be remanded to the original hearing

panel for disposition of the other ques-

tions presented.

The threshold requirement under the

§ 144 disqualification procedure is that a

party file an affidavit demonstrating

personal bias or prejudice on the part of

the district judge against that party or

in favor of an adverse party.’ Once the

affidavit is filed, further activity of the

judge against whom it is filed is cireum-

scribed except as allowed by the statute.

In terms of the statute, there are three

issues to be determined: (1) was the af-

fidavit timely filed; (2) was it accompa-

nied by the necessary certificate of coun-

sel of record; and (3) is the affidavit

sufficient in statutory terms? See gen-

erally 13 Wright, Miller & Cooper, Fed-

eral Practice and Procedure §§ 3541-53

(1975).

We are concerned only with the third

issue. As we said in Davis v. Board of

School Commissioners of Mobile County,

5 Cir., 1975, 517 F.2d 1044:

“Once the motion is filed under

§ 144, the judge must pass on the le-

2. The panel opinion dated December 2, 1974 is

reported. Parrish v. Board of Commissioners

of the Alabama State Bar, 5 Cir., 1975, 505

F.2d 12. The opinion was withdrawn on Feb-

ruary 20, 1975. Parrish vy. Board of Commis-

sioners of the Alabama State Bar, 5 Cir., 1975,

509 F.2d 540. The court determined on June

5, 1975, sua sponte, to consider the matter en

banc.

3. § 144.

Whenever a party to any proceeding in a

district court makes and files a timely and

sufficient affidavit that the judge before

whom the matter is pending has a personal

bias or prejudice either against him or in

gal sufficiency of the affidavit, but

may not pass on the truth of the mat-

ters alleged. See Berger v. United

States, 1921, 255 U.S. 22, 41 S.Ct. 230,

65 L.Ed. 481; United States v. Roca-

Alvarez, 5 Cir., 1971, 451 F.2d 843,

847-48; United States v. Townsend, 3

Cir., 1973, 478 F.2d 1072.”

517 F.2d at 1051.

Legal sufficiency is determined

as a question of law on the basis wheth-

er the affidavit sets out facts and rea-

sons for the party’s belief that the judge

has a personal bias and prejudice against

the party or in favor of the adverse par-

ty. The facts and reasons set out in the

affidavit “must give fair support to the

charge of a bent of mind that may pre-

vent or impede impartiality of judg-

ment.” Berger v. United States, supra,

255 U.S. at 33, 41 S.Ct. at 233, 65 L.Ed.

at 485.

The legal question presented is

determined by applying the reasonable

man standard to the facts and reasons

stated in the affidavit. See United

States v. Thompson, 3 Cir., 1973, 483

F.2d 527, which states the standard as

requiring that the facts be such, their

truth being assumed, as would “convince

a reasonable man that a bias exists”, 483

favor of any adverse party, such judge shall

proceed no further therein, but another

judge shall be assigned to hear such pro-

ceeding.

The affidavit shall state the facts and the

reasons for the belief that bias or prejudice

exists, and shall be filed not less than ten

days before the beginning of the term at

which the proceeding is to be heard, or good

cause shall be shown for failure to file it

within such time. A party may file only one

such affic' ‘it in any case. It shall be ac-

companied by a certificate of counsel of

record stating that it is made in good faith.

PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR 39a

F.2d at 528.4 The tripartite test of the

Third Circuit is as follows:

“In an affidavit of bias, tie affiant

has the burden of making a three-fold

showing:

“1. The facts must be material and

stated with particularity;

“2. The facts must be such that, if

true they would convince a reasonable

man that a bias exists.

4. The reasonable man standard was first artic-

ulated in terms of requiring that the affidavit

State facts “from which a sane and reasonable

mind may fairly infer bias or prejudice.”

Keown v. Hughes, | Cir., 1920, 265 F. 572,

577. Accord, Craven v. United States, | Cir.,

1927, 22 F.2d 605, 607; Wilkes v. United

States, 9 Cir., 1935, 80 F.2d 285, 289; Hurd v.

Letts, 1945, 80 U.S.App.D.C. 233, 152 F.2d 121,

122; Eisler v. United States, 1948, 83 U.S.App.

D.C. 315, 170 F.2d 273, 278.

5. 2. Plaintiff believes and avers that the juaze

before whom this action is pending, the Hon-

orable Robert E. Varner, has a personal bias

and prejudice against him, the other named

plaintiffs, and the class represented by plain-

tiffs in this action.

3. The facts and reasons for the belief that

such personal bias and prejudice exist are as

follows:

a. The instant action complains, inter alia,

that the defendants maintain a policy of ex-

cluding blacks from the practice of law in the

State of Alabama. The Honorable Robert E.

Varner is presently a member of the Mont-

gomery County (Alabama) Bar Association;

and when he served as President of that asso-

ciation two years ago, black lawyers were ex-

cluded from membership in the said associa-

tion under the terms of its by-laws. The Hon-

orable Judge Varner was then acquainted with

the five or six black lawyers who then prac-

ticed in Montgomery; but never made an ef-

fort to invite them to join the association. It

was only after the aforesaid judge became in-

terested in a federal judgeship that he, as pres-

ident of the Montgomery County Bar Associa-

tion, appointed a committee to revise the said

by-laws; and the record is unclear as to

whether the “white only” membership clause

“3. The facts must show the bias is

personal, as opposed to judicial, in na-

ture.”

483 F.2d at 528.

The pertinent part of the affidavit

filed against Judge Varner is set out in

the margin.’ We consider it in light of

the transcript developed in an examina-

tion of the district judge some weeks

before the affidavit was filed* See the

discussion of the content of the tran-

of the Montgomery County Bar Association

was removed during his tenure as president of

the aforesaid association.

b. None of the plaintiffs in this case are per-

sonally acquainted with the Honorable Robert

E. Varner. The said judge considers the de- .

fendant Commissioner Hill as a_ personal

friend; he is a friend of Reginald Hamner, one

of the chief defendants in the case; he is a

friend of John Scott, defendant Hamner’s

predecessor in office and proposed to be called

by the plaintiffs as an adverse witness; he is

also a friend of counsel for ail of the defend-

ants. Further the said judge is personally ac-

quainted with many of the other defendants in

this cause. Although the testimony of the wit-

nesses at the trial of this cause is expecte

be conflicting in nature, the aforesaid Judge

Varner has indicated that he does not believe

that any of the defendants with whom he is

acquainted would intentionally misrepresent

any of the matters related to this lawsuit.

Thus, plaintiffs sincerely believe that where

the judge is called upon to make credibility

choices throughout the trial, as he will be, he

will attach undue weight to the testimony of

his friends and acquaintances, all to the detri-

ment of the plaintiffs and the class they repre-

sent.

6. The unorthodox procedure of an examination

of the judge by counsel for plaintiff prior to

filing the affidavit leads to some confusion on

review. For example, plaintiffs take some

comfort from Judge Varner’s statement during

the examination that he would not disqualify.

This appears to them as a prejudgment. In

any event, such prejudgment as existed was

academic absent the required affidavit. The

affidavit was filed 30 days later.

40a PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR

script in the panel opinion, 5 Cir., 505

F.2d 12.

The factual bases in the affidavit of

disqualification are also summarized in

the pane! opinion as follows:

“(1) that while Judge Varner was

President of the Montgomery County

Bar Association two years ago, the As-

sociation had a clause in its by-laws

barring black members and that the

judge never made any effort to invite

black lawyers whom he knew to join;

“(2) that Judge Varner was ac-

quainted with several defendants in

the suit and e'! of defendants’ counsel,

and that he said he did not believe

that any of the defendants whom he

knew would intentionally misrepresent

any of the matters related to the law-

suit.”

505 F.2d at 17.

Il.

With these facts and the recited

legal principles in mind, we proceed to a

consideration of the sufficiency of the

affidavit. Personal bias or prejudice is

required under § 144. Neither of the

factual bases alleged for recusal here

raises an inference of personal bias or

prejudice.

The first ground asserted, Judge Var-

ner’s past activities in the Montgomery

Bar Association, is essentially an allega-

tion based on the judge’s background

and states no specific facts that would

suggest he would be anything but impar-

tial in deciding the case before him.

The claim of bias is general or imperson-

al at best. See Eisler v. United States,

1948, 83 U.S.App.D.C. 315, 170 F.2d 273;

Simmons v. United States, 5 Cir., 1937,

89 F.2d 591; Price v. Johnston, 9 Cir.,

1942, 125 F.2d 806; cf. United States v.

Seiffert, 5 Cir., 1974, 501 F.2d 974, 977-

The second ground, regarding Judge

Varner’s acquaintance with some of the

defendants and counsel, has been reject-

ed as a basis for requiring the disqualifi-

cation of a trial judge. See e. g. Sim-

mons v. United States, 5 Cir., supra;

Parker Precision Products Co., Ince. v.

Metropolitan Life Insurance Co., 3 Cir.,

1969, 407 F.2d 1070, 1077; Broome v.

Simon, W.D.La., 1965, 255 F.Supp. 434,

438. The argument is that Judge Var-

ner would be biased when it came to

making credibility choices among wit-

nesses. His statements made when be-

ing examined by counsel as to his possi-

ble disqualification were no more than

an acknowledgement of friendship or ac-

quaintanceship, and a refusal to con-

demn these persons as unworthy of be-

lief in advance of whatever their testi-

mony might prove to be. A statement

by Judge Varner that he would believe,

without question, any testimony of such

persons would require a different result.

Here, however, Judge Varner’s answers

did not refiect a lack of impartiality.

The additional ground of the friendship

between the judge and counsel for appel-

lees, without more, is so lacking in merit

as to warrant no discussion.

In short, the affidavit, including the

facts on which it was based, was legally

insufficient under § 144 to require dis-

qualification. Judge Varner did not err

in so ruling.

ITI.

We next consider questions which

arise in an unusual context. Title 28,

§ 455, was amended effective December

5, 1974. The order of the district court

being appealed from was entered and

the panel opinion of this court was is-

PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR 4la

sued prior to December 5, 1974. Appel-

lants suggest, nevertheless, that because

the court determined to hear the cause

en banc, and to receive supplemental

briefs, the cause was thereby not “fully

submitted” for appellate review prior to

the effective date of the amendment.’

We held in Davis v. Board of School

Commissioners of Mobile County, supra,

that the amended statute applied where

that appeal had not been fully submitted

on the effective date of the Act. Here

the appeal was submitted on June 11,

1974 when the original panel heard oral

argument and took the cause under sub-

mission. Indeed, the panel opinion was

issued on December 2, 1974, three days

before the effective date of the Act.

That opinion was withdrawn, however,

and thus the matter continued under

submission. Thereafter, on June 5, 1975,

the court ordered the matter heard en

bane and allowed supplemental briefs.

7. The Act amending § 455 provides:

This Act [amending this section] shal! not

apply to the trial of any proceeding com-

menced prior to the date of this Act [Dec. 5,

1974], nor to appellate review of any pro-

ceeding which was fully submitted to the

reviewing court prior to the date of this Act.

Pub.L. 93-512, § 3, 88 Stat. 1609.

8. One caveat is important in the administra-

tion of §§ 144 and 455. Ordinarily the provi-

sions of § 455 would be drawn into issue in

determining the sufficiency of an affidavit un-

der § 144 only to the extent that affiant relies

upon those provisions in filing the affidavit.

Here we consider the provisions of amended

§ 455 only because the amendment is made

applicable to cases not fully submitted on ap-

peal and because the amendment was not in

being when the affidavit was made.

We described the relationship between § 144

and § 455 in Davis as follows:

“The office of the procedure under § 144 is

to disqualify a judge prior to trial on motion

of a party. Section 455 is the statutory

standard for disqualification of a judge. It is

self-enforcing on the part of the judge. It

may also be asserted by a party by motion

Assuming that an appeal is fully sub-

mitted after the briefing schedule has

terminated and oral argument, if there

is to be such, has taken place, then it

may well be asserted that this cause

was, in effect, reopened when the sup-

plemental briefs were allowed on en

banc consideration. Given this circum-

stance and the policy of the statute, we

conclude that the question of disqualifi-

cation must also be reviewed.® Under

the standards now embraced in amended

§ 455. The questions to be considered go

to the sufficiency of the affidavit, as

bolstered, in the peculiar posture of this

case, by the transcript of the pre-affida-

vit interview or examination of Judge

Varner. They are questions of law and

may be decided in this court although

never presented to the district court.

Davis v. Board of School Commissioners,

supra.

There are now several standards ‘1

§ 455. Some go to specific conduct, but

in the trial court, Rapp v. Van Dusen, 3 Cir..

1965, 350 F.2d 806, 809; through assignment

of error on appeal United States v. Seiffert.

5 Cir., 1974, 501 F.2d 974; Shadid v. Oklaho-

ma City, 10 Cir., 1974, 494 F.2d 1267, 1268,

by interlocutory appeal, as here, or by man-

damus, Texaco, Inc. v. Chandler, 10 Cir,

1965, 354 F.2d 655.”

517 F.2d at !051--52.

9. 28 U.S.C.A. § 455, reads in pertinent part:

(a) Any justice, judge magistrate, or referee

in bankruptcy of the United States shall dis-

qualify himself in any proceeding in which

his impartiality might reasonably be ques-

tioned.

(b) He shall also disqualify himself in the

following circumstances:

(1) Where he has a personal bias or preju-

dice concerning a party, or personal

knowledge of disputed evidentiary facts

concerning the proceedings;

. > 7 > . >

(4) He knows that he, individually or as a

fiduciary, or his spouse or minor child re-

siding in his household, has a financial in-

42a PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR

one, set out in § 455(a), is general and

does not rest on the personal bias and

prejudice stricture of §§ 144 and

455({b\1). As we noted in Davis, supra,

517 F.2d at 1052, the language of

§ 455(a) was intended to displace the

subjective “in the opinion of the judge”

test for recusal under the old statute,

and the so-called “duty to sit decisions”.

We also noted that § 455(a) was intend-

ed to substitute a “reasonable factual ba-

sis—reasonable man test” in determining

whether the judge should disqualify him-

self. See 13 Wright, Miller & Cooper,

Federal Practice and Procedure § 3542

(1975). See also, Frank, Commentary on

Disqualification of Judges-Canon 3c,

1972, Utah L.Rev. 377, 379. Note, Dis-

qualification of Judges and Justices in

the Federal Courts, 86 Harv.L.Rev. 736,

745-50 (1973).

f€}) Considering first the § 455(a)

claim, and the relevant facts and circum-

stances, we are of the view that a rea-

sonable man would not infer that Judge

Varner’s “impartiality might reasonably

be questioned”. The facts have been

stated in our discussion of the § 144 is-

sue.

Judge Varner was president of a local

bar association in which black lawyers

were denied membership. This policy

was changed during or shortly after his

administration as president. As the affi-

davit makes clear, see Note 5, supra, he,

at the least, set the change in policy in

motion by appointing a committee to re-

vise the by-laws. He is faulted for not

terest in the subject matter in controversy

or in a party to the proceeding, or any

other interest that could be substantially

affected by the outcome of the proceeding;

(d) For the purposes of this section the fol-

lowing words or phrases shail have the

meaning indicated:

making an effort to obtain membership

for black lawyers through inviting them

to join, yet he, in effect, did just this in

having the by-law changed. Appellants’

logic would catch saint and sinner alike.

There is hardly any judge in this circuit

who was not a member of a segregated

bar association at one time, and many

have held a high office in the bar associ-

ations. The way of life which included

segregated bar associations has been

eliminated but only a new generation of

judges will be free from such a charge.

In any event, this circumstance will not

support a claim of lack of impartiality.

Such a claim must be supported by facts

which would raise a reasonable inference

of a lack of impartiality on the part of a

judge in the context of the issues

presented in a particular law suit.

There are no such facts here. The stat-

ed conduct of Judge Varner does not

support such an inference.

The allegation of lack of impartiality

stemming from Judge Varner’s acquaint-

anceship or friendship with witnesses

and defense counsel is likewise tenuous.

It does not exceed what might be ex-

pected as background or associational ac-

tivities with respec. to the usual district

judge. As a factuai basis, the allega-

tions fall short of supporting an infer-

ence of lack of impartiality under

§ 455(a).

The factual basis also falls short

under § 455(b\1), in that there is no

particularized allegation that Judge Var-

ner had “personal knowledge of disputed

(4) “financial interest" means ownership

of a legal or equitable interest, however

small, or a relationship as director, advis-

er, or other active participant in the affairs

of a party, :

PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR 43a

evidentiary facts concerning the proceed-

ing”. Credibility choices are not disput-

ed facts.

There are two additional claims of dis-

qualification under amended § 455.

They are based on the membership of

Judge Varner in the Alabama State Bar,

an organization in which membership

has long been compulsory under the inte-

grated bar concept. Title 46, §§ 30, 42,

Code of Alabama. Each claim is attenu-

ated in the extreme.

First, it is suggested that Judge Var-

ner has a substantial interest in the suc-

cess of defendants in the suit because of

his identification with the bar associa-

tion. Appellants rely on § 455(b)(4) for

this proposition. No interest exceeding

mere membership is asserted. This is

not a ground for disqualification.

The second ground based on the

judge’s bar association membership is

that he has a financial interest in the

outcome of this case because the bar as-

sociation may be compelled to pay attor-

neys’ fees should plaintiffs succeed. Al-

though the amended § 455 states that

any “financial interest” in the subject

matter in controversy or any party to

the proceeding requires recusal, the spec-

tre of the potential obligation of the

Board of Commissioners, ‘a judicial organ

of the state, Title 46, § 21 et seq., Code

of Alabama, for attorneys’ fees does not

fall within the statutory definition of

“financial interest”. Section 455(d)(4), n.

9, supra.

We affirm as to the denial of the mo-

tion to disqualify. Except as to that

issue, the appeal is remanded to the orig-

inal panel for disposition.

JOHN R. BROWN, Chief Judge (spe-

cially concurring):

I concur in the result and all of Judge

Bell’s opinion in Parts II and III and all

of the opinion in Part I except that por-

tion which specifically adopts the test in

the Third Circuit case of United States

v. Thompson, 3 Cir., 1973, 483 F.2d 527.

I believe that the portion of the test in

Thompson that requires a finding that

“the facts if true

would convince a reasonable man that a

bias exists” (emphasis added) can be

read as requiring proof of bias in fact. I

do not think that we need go this far.

Under the other acceptable and fre-

quently used test, whether a reasonable

person could reasonably have a belief of

bias, this affidavit is still insufficient.

Therefore, I would reach the same re-

sult, but I think that we need not decide

at this point which of these two possibly

divergent standards we should apply.

GODBOLD, Circuit Judge (specially

concurring):

I concur in the result and in Part II of

Judge Bell’s opinion. I agree with

Judge Roney that we do not reach 28

U.S.C. § 455 standards.

RONEY, Circuit Judge (specially con-

curring):

I concur in the result and Part II of

Judge Bell’s opinion. As to Part I, I join

in Chief Judge Brown’s concurrence.

Part III considers a question which I do

not believe is before the Court, i. e.,

whether the district judge’s refusal to

recuse himself was proper under 28 U.S.

C.A. § 455 standards, as amended on De-

cember 5, 1974.

I agree that en banc consideration

makes this an appellate review not “ful-

ly submitted,” so that § 455, as amended,

would apply to this appellate review,

which means it would set the standard

for recusal of any of our reviewing

44a PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR

judges who might be challenged for bias.

But that is not the question. The dis-

trict judge sat at trial. What act ap-

plied to the trial? Congress clearly pre-

vided that the new § 455 Act “shall not

apply to the trial of any proceeding”

commenced prior to December 5, 1974.

The trial of this proceeding was complet-

ed prior to that date. We are judging

the correctness of that trial and should

do so by the standard applying to it as

clearly set forth in the statute.

The Act amending § 455 provides:

This Act [amending this section]

shall not apply to the trial of any pro-

ceeding commenced prior to the date

of this Act [Dec. 5, 1974], nor to appel-

late review of any proceeding which

was fully submitted to the reviewing

court prior to the date of this Act.

Pub.L. 93-512, § 3, 88 Stat. 1609.

The application of this act to the dis-

‘trict judge’s refusal to recuse himself at

trial of this proceeding envisions a provi-

sion as to when the amendment is to be

applied in “appellate review,” not to ap-

pellate review. Congressional approach,

however, was to address the level “of

any proceeding” that the statute would

apply to. Part III of Judge Bell’s opin-

ion applies § 455 in appellate review toa

trial of this proceeding to which the act

specifically says it does not apply. It

seems inconsistent to provide one stan-

dard of recusa! for the trial judge to

apply to himself at the trial, and provide

a different standard by which to review

the correctness of his failure to recuse.

Apparently Congress thought so too. I

would not apply the act contrary to the

express directions of Congress.

1. And though it also reaffirms the settled rule

that judicial actions cannot be made the basis

of an accusation of bias, it should not be diffi-

cult for an inventive affiant to assert extra-ju-

GEE, Circuit Judge (specially concur-

ring):

The proper interpretation of Section

144 is a vexed matter with which I have

long struggled. The belief of the parties

that they are receiving even-handed jus-

tice, the apparency of justice to those

not parties, the importance of both per-

ceptions in maintaining the legitimacy of

the judicial institution, the difficult deci-

sions faced by a judge called upon to

stand recused, and the practical implica-

tions of § 144 for the continued efficient

functioning of the district courts in our

circuit are some of the competing consid-

erations. They are not easily harmo-

nized, and, indeed, there may be no en-

tirely satisfactory manner of implement-

ing Section 144. And though I concur

fully in the opinion of the court on the

assumption that United States v. Berger,

255 U.S. 22, 41 S.Ct. 230, 65 L.Ed.2d 481

(1921), remains good law, I feel obliged

to express my doubt that it does or

should. For, in my respectful view, Ber-

ger represents an outdated rule which

has been made tolerable in present cir-

cumstances only by engraftment of dubi-

ous exceptions.

The majority opinion reaffirms Ber-

ger’s antique rule that whatever “facts”

the recusal affidavit may assert cannot

be questioned but must be accepted as

gospel.' Such an approach gives free

play to the unscrupulous or reckless affi-

ant, willing to run his chance of a pon-

derous and unlikely prosecution for per-

jury—and perhaps in little danger, since

Berger seems to say that “affidavit” as-

sertions made on mere information and

belief will suffice for § 144 purposes.?

Perjury charges have traditionally been

dicial bases that disguise an aversion actually

grounded in judicial philosophy and approach.

2. 255 U.S. at 34, 41 S.Ct. 230.

PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR 45a

based on falsely stated physical facts,

and are rarely extended to representa-

tion of opinions. Suffice to say, estab-

lishing beyond reasonable doubt bad

faith in assertion of a belief purportedly

held at the time of an affidavit’s filing is

no light iask.2 For similar reasons,

counsel will not likely fear disciplinary

proceedings initiated by the local bar. I

am reluctant to join in mandating a pro-

cedure which envisions, for example,

that a judge must take as true an affi-

davit asserting, perhaps on “information

and belief,” that he has recently engaged

in an acrimonious personal dispute with

« defendant—complete with particu-

tars—and is therefore disqualified to sit

it his case, when the judge well knows

that the affidavit has misidentified him

and is mistaken. We go far enough

when we read § 144 as withdrawing

from ihe judge decision of the final fact,

his own actual bias. We should noi re-

quire him to conduct such a curious and

hypothctics! proceeding as deciding

whether an apprehension or bias is rea-

sonably supported by whatever supposi-

tious state of facts a daring and unscru-

pulous, or perhaps merely misadvised

and agitated, party may be willing to

swear to.

Factual matters necessary to decision

of preliminary questions, of which recu-

sal is a prickly example, are routinely

resolved by weighing and evaluating af-

fidavits. See, e. g, Wright & Miller,

Federal Practice and Procedure s i373,

at 714. Only three workable modes of

deciding this particular question occur:

3. The author of Note, 79 Harv.L.Rev. 1435

(1966), found no cases in which a perjury

charge stemming from a § 144 affidavit had

ever been prosecuted during the (then) forty-

five years since Berger. Id. at 1442. Indeed, !

have found none to date.

(1) peremptory disqualification upon the

mere filing of an affidavit; (2) decision

of the issue by another magistrate than

the one accused; or (3) decision either of

actual bias or the reasonable appearance

of it by the magistrate sought to be dis-

qualified.

There are indications in the legislative

history that peremptory disqualification

was the legislative intent;* but this con-

struction has never been adopted by any

court. Reference to another magistrate

is utterly foreign to the statutory

scheme and raises its own problems of

administrative inconvenience and delay.

The statute’s language zives fair support

to the construction that the judge is not

to determine bias-in-fact, and common

sense supports the view that few if any

humans can fairly decide whether they

themselves are or are not biased in any

given matter. But it is not too much to

ask that a conscientious magistrate de-

termine whether a given affidavit con-

tains enough truth to fairly support a

reasonable apprehension that he may be

biased, or that an appellate court review

that decision effectively. There is,

therefore, no need to discern in § 144 a

rule by which a party who reaily wanis

to do so and has the nerve can al pleas-

ure disqualify any federal judge in a giv-

en proceeding by presenting to him 2

spurious set of ex parte “facts” which he

cannot question—and by which his oppo-

nent can disqualify his first replaceent

by the same means.

| freely admit that Berger appears on

its face to foreclose my reading of § 144.

4. The chief sponsor of the bill, asked if the

judge retainec any discretion after the filing of

the recusal affidavit, replied: “No, it provides

the judge shall proceed no further with the

case.” 46 Cong.Rec. 2627 (1911).

5. Section 144 limits a party to” . one

such affidavit in any case.”

46a PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR

The Berger decision, however, has not

gone unscathed—even by its authors—in

the many years since 1921. It is notori-

ous that, faced with its quixotism, courts

on the firing line have, addressing other

issues, limited its scope in ways perhaps

dubious. As is duly observed, for exam-

ple, in Comment, 57 Minn.L.Rev. 749, 755

(1973), the lower federal courts have ef-

fectively rejected a liberal reading of

Berger by such anomalous and desperate

devices as requiring that the affidavit

establish bias-in-fact, United States v.

Gilboy, 162 F.Supp. 384, 393 (M.D.Pa.

1958), by restricting the types of facts

which may constitute a sufficient affida-

vit, Chessman v. Teets, 239 F.2d 205, 215

(9th Cir. 1956), rev'd on other grounds,

354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d

1253 (1957), and by requiring that the

bias be directed to the party personally,

Cole v. Lowe’s Inc., 76 F.Supp. 872, 876

(S.C.Cal.1948), rev’d on other grounds,

185 F.2d 641 (9th Cir. 1950), cert. denied,

340 U.S. 954, 71 S.Ct. 570, 95 L.Ed. 688

(1951). The Supreme Court has directly

approved one such inroad in United

States v. Grinnell Corp., 384 U.S. 563, 86

S.Ct. 1698, 16 L.Ed.2d 778 (1966), holding

that the alleged bias “must stem from

an extrajudicial source and result in an

opinion on the merits on some basis oth-

er than what the judge learned from his

participation in the case.” Although the

Grinnell! Court cited Berger, the proposi-

tion stated can be construed far more

broadly than anything mentioned there.

Also, Berger to the contrary notwith-

standing, it is far from clear that the

Supreme Court in Grinnell felt itself

bound to accept as given fact the allega-

6. In Pfizer the court was interested in a dem-

onstration of actual personal bias. In order to

decide the issue the court “carefully examined

the petition, the underlying joint affidavit, the

responses thereto, and portions of the record

pertinent to petitioners’ claims.” 456 F.2d at

tions made by the affiants: in its opin-

ion the Court quotes from what can only

be the transcript of pretrial proceedings,

a type of matter which the Berger Court

went out of its way to declare irrelevant.

In other instances the Court has denied

certiorari and left standing inroads on

and narrow interpretations of Berger.

See, e. g., Pfizer, Inc. v. Lord, 456 F.2d

532 (8th Cir.), cert. denied, 406 U.S. 976,

92 S.Ct. 2411, 32 L.Ed.2d 676 (1972); *

Mirra v. United States, 379 F.2d 782,

787-88 (2d Cir.), cert. denied, 389 U.S.

1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967);

Ryan v. United States, 99 F.2d 864, 871

{8th Cir. 1938), cert. denied, 306 U.S. 635,

59 S.Ct. 484, 83 L.Ed. 1037 (1939). I am

all but convinced that if faced with the

facts of Berger today the Supreme Court

would decide it otherwise. Being so per-

suaded, I would not lightly expose our

circuit to such risks of wholesale disrup-

tion as an untimely resurrection of Ber-

ger in its pristine and literal form

threatens, to be endured until the Su-

preme Court—grappling with the mighty

concerns which face it—is able to recon-

sider these questions.

Finaliy, I realize that the approach to

§ 144 I advance is likely foreclosed even

by previous panel decisions in our own

circuit. Davis v. Board of School

Comm'rs, 517 F.2d 1044 (5th Cir. 1975);

United States v. Roca-Alvarez, 451 F.2d

843, 847-48 (Sth Cir. 1971), rehearing

granted, 474 F.2d 1274 (5th Cir. 1973);

Beland v United States, 117 F.2d 958,

960 (5th Cir.), cert. denied, 313 U.S. 585,

61 S.Ct. 1110, 85 L.Ed. 1541 (1941); Sim-

mons v. United States, 89 F.2d 591, 592-

533 (emphasis added). And, asthough accept-

ing as true the facts recited in the affidavit,

“[w]je determine the validity of petitioners’

conclusion of bias by examining the cited facts

against the record presented to us.” 456 F 2d

at 537 (emphasis added).

PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR 47a

93 (5th Cir.), cert. denied, 302 U.S. 700,

58 S.Ct. 19, 82 L.Ed. 540 (1937), and in-

deed Henry v. Speer, 201 F. 869 (5th Cir.

1913), quoted with approval in Berger.

But I do not think such a position wise

or practical, and the court en banc is

free to adopt a different one. I would

grasp the nettle now.

TUTTLE, Circuit Judge, with whom

GOLDBERG, Circuit Judge, joins, dis-

senting.

With deference I disagree with the

opinion of the Court as to the standard

that is to be used by the Court in deter-

mining whether an affidavit for bias

filed under § 144 is “sufficient.” I agree

with the statement quoted in the opinion

from Davis v. Board of School Commis-

sioners of Mobile County, 517 F.2d 1044

(5th Cir. 1975):

“Once the motion is filed under

§ 144, the judge must pass on the le-

gal sufficiency of the affidavit, but

may not pass on the truth of the mat-

ters alleged. See Berger v. United

States, 1921, 255 U.S. 22, 41 S.Ct. 230,

65 L.Ed. 481; United States v. Roca-

Alvarez, 5 Cir., 1971, 451 F.2d 843,

847-48; United States v. Townsend, 3

Cir., 1973, 478 F.2d 1072.”

I cannot agree, however, that the stan-

dard of determining the “legal sufficien-

cy of the affidavit” is one that requires

that the facts be such, their truth being

assumed, as would “convince a reasona-

ble man that a bias exists.” As stated in

the panel opinion of the Court, subse-

quently withdrawn, 5 Cir., 505 F.2d 12, I

am of the view that the standard is one

that merely requires that the facts be

such, their truth being assumed, as

would convince a reasonable man that

the affiant reasonably believed that bias

exists.

Of course, this Court, sitting en banc,

is writing on a clean slate, and in doing

so the Court, very properly, I think, con-

siders that the standard to be applied to

the decision of this issue is one that must

meet the requirements of § 455. It is

my opinion that the Berger case, con-

struing the predecessor of } 144 and the

new amended § 455, outl.ned and dis-

cussed in the majority opinion, vvih re-

quire that the judge against whom an

affidavit for bias is lodged must deter-

mine only whether the allegations are

such as would cause a reasonable person

standing in the same relationship as does

the affiant to believe that the challenged

judge has a “bent of mind that may

prevent or impede impartiality of judg-

ment.” Berger v. United States, 255

U.S. 22, 33, 41 S.Ci. 230, 233, 65 L.Ed.

481.

If what is called the “objective” stan-

dard, that is whether a reasonable man

would conclude that bias actually exists

had been the standard intended by the

Supreme Court in Berger the Court

would not have said that the affidavit

“must give fair support to the charge of

a bent of mind that may prevent or im-

pede impartiality of judgment.” It

would have said rather that the affidavit

“must give fair support to the existence

or fact of a bent of mind, ete.” In dis-

cussing the standard in Berger, the

Court referred to the language that the

“affidavit shall state the facts and the

reasons for the belief” of the existence

of the bias =r prejudice. The Court said:

“Of course the reasons and facts for

the belief the litigant entertains are

an essential part of the affidavit, and

must give fair support to the charge

of a bent of mind .....” [Em-

phasis added.]}

It seems clear to me that this statement

means that the affidavit must reason-

48a PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR

ably support the belief of the affiant

and not that it must reasonably support

the actual existence of bias. This view

has been expressed in the following lan-

guage:

“A formulation . . . in keep-

ing with the purpose of the statute

would require only that the facts al-

leged must justify a reasonable appre-

hension on the part of the affiant that

the judge may be biased [footnote

omitted]. This formulation shifts the

emphasis from the judge’s actual state

of mind to the reasonableness of the

litigant’s fear, an emphasis at least

supported, and possibly required, by

the statutory language ,

{Emphasis added.]

Disqualification of Judges for Bias in the

Federal Courts, 79 Harv.L.Rev. 1435,

1446-47 (1966).

The approach which I would take to

the construction of this statute seems to

me much more consistent with the ex-

pression of this Court in United States v.

Columbia Broadcasting System, Inc., 497

F.2d 107 (5th Cir. 1974) dealing with the

basic right of a party to a fair and im-

partial tribunal:

“The recondite niceties of contempt

law coupled with the strange milieu of

a judge passing on the clarity of his

own orders, which had to be substanti-

ated largely by his own legal staff,

sheuld make us particularly sensitive

to the demands of justice, and more

particularly, to the appearance of jus-

tice. The guarantee to the defendant

of a totally fair and impartial tribunal,

and the protection of the integrity and

dignity of the judicial process from

any hint or appearance of bias is the

palladium of our judicial system.”

{Emphasis supplied.)

I would conclude that a trial court

cannot be free from “any hint or appear-

ance of bias” unless a party’s sworn be-

lief of the existence of bias, supported

by substantial facts, and tested by a

standard of reasonableness, is of primary

concern.

The view which I hold as to the proper

interprecation of § 144 is fortified by the

recent enactment by Congress of amend-

ments to § 455. This section of the Code

provides as follows:

“(a) Any justice, judge, magistrate,

or referee in bankruptcy of the United

States shall disqualify himself in any

proceeding in which his impartiality

might reasonably be questioned.”

The House Report on this bill which

adopted major portions of the Senate

Report, No. 93-419 to accompany the

Senate Bill commented expressly on the

relation between this amendment and

the newly adopted Code of Judicial Con-

duct for United States Judges.' The Re-

port contains the following language:

“Thus, the present situation is one

where the Judicial Conference has

made applicable to all federal judges

the new Code of Judicial Conduct, in-

cluding Canon 3C relating to disquali-

fication of judges. The present lan-

guage of § 455 of title 28 is less re-

strictive than the new Canon on dis-

qualification. The bill (S. 1064) under

consideration would amend section 455

by making it conform, with two excep-

tions, to the requirements of the canon

on disqualification.”

1974 U.S. Code Congressional & Admin-

istrative News, p. 6353.

1. This Code of Judicial Conduct for United States Judges was adopted by the Judicial Conference

of the United States in April, 1973.

PARRISH v. BOARD OF COM’RS OF ALABAMA STATE BAR 49a

Only one of the “exceptions” referred

to in the foregoing language is relevant

to our discussion. This exception is the

change made in the third word of the

Code of Judicial Conduct. Congress saw

fit to change the words “a judge should

disqualify himself in a proceeding in

which his impartiality might reasonably

be questioned” to “a judge shail disquali-

fy himself in a proceeding in which his

impartiality might reasonably be ques-

tioned,” thus indicating more clearly the

intent of Congress that the standards be

tightened up to the extent that less dis-

cretion was to be left to the particular

judge.

Furthermore, the changing of the

word from “should” to “shall” is ex-

plained by comments in the House Cum-

mittee Report:

“The language also has the effect of

removing the so-called ‘duty to sit’

which has become a gloss on the exist-

ing statute. See Edwards v. United

States, 334 F.2d 360 (5th Cir. 1964).

Under the interpretation set forth in

the Edwards case, a judge, faced with

a close question on disqualification,

was urged to resolve the issue in favor

of a ‘duty to sit.’ Such a concept has

been criticized by legal writers and

witnesses at the hearings were unani-

mously of the opinion that elimination

of this ‘duty to sit’ would enhance

public confidence in the impartiality of

the judicial system.”

More importantly, however, it seems

to me to be clear that both the Code and

the new § 455, which now speak in the

same terms, has set up a standard in-

volving the reasonableness of the belief

or fear of the litigant rather than the

reasonable likelihood of the existence of

actual lack of impartiality. It will be

noted that the language speaks in terms

of the judge’s impartiality being reason-

ably “questioned.” It does not speak in

terms of his partiality being reasonably

likely to exist. Moreover, in the Com-

mittee Report the following language

makes clear, it seems to me, that we are

dealing with the reasonableness of the

litigant’s belief or fear of the existence

of bias rather than the reasonableness of

the claim that bias actually exists:

“Nothing in this proposed legislation

should be read to warrant the trans-

formation of a litigant’s fear that a

judge may decide a question against

him into a ‘reasonable fear’ that the

judge will not be impartial.”

By clearest implication, it seems to me

that this language says that the stan-

dard must be whether the litigant has a

“reasonable fear” that the judge will not

be impartial.

The use of the terms “objective” and

“subjective” are somewhat confusing in

this context. I agree that there must be

an objective determination as to whether

the facts and circumstances fairly sup-

port the litigant’s belief or fear that

there is a lack of impartiality. To this

extent it is an objective test.

Under this test, therefore, I would

have no doubt but that the affidavit in

this case, considered in connection with

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